Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello Civil Action No. 18-cv-00981-CMA-MEH
HEIDI GILBERT,
AMBER MEANS,
MANDY MELOON,
GABRIELA JOSLIN,
KAY POE, and
JANE DOES 6 – 50,
Plaintiffs,
v.
UNITED STATES OLYMPIC COMMITTEE,
USA TAEKWONDO, INC.,
STEVEN LOPEZ,
JEAN LOPEZ, and
JOHN DOES 1 – 5,
Defendants. ORDER AFFIRMING AND ADOPTING IN PART AND REJECTING IN PART MAGISTRATE JUDGE’S MARCH 6, 2019 RECOMMENDATION AND GRANTING IN
PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS ______________________________________________________________________
This matter is before the Court on the March 6, 2019 Recommendation by United States Magistrate Judge Michael E. Hegarty, in which the Magistrate Judge recommends that this Court grant in part and deny in part three motions to dismiss: (1) Defendants Steven Lopez and Jean Lopez’s (together, the “Lopez Defendants”) Motion to Dismiss (Doc. # 106); (2) Defendant United States Olympic Committee’s (“Defendant USOC”) Motion to Dismiss and Motion to Strike Class Action Allegations (Doc. # 108); and (3) Defendant USA Taekwondo, Inc.’s (“Defendant USAT”) Motion to Dismiss (Doc. # 109). (Doc. # 218.) Plaintiffs and all Defendants object to portions of the Recommendation. (Doc. ## 224–27.) For the reasons described below, the Court affirms and adopts in part and rejects in part the Recommendation, and it grants in part and denies in part Defendants’ Motions to Dismiss.
I. BACKGROUND
The Recommendation thoroughly recites the factual and procedural background of this dispute and is incorporated herein by reference. (Doc. # 218.) See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Accordingly, this Order will reiterate only what is necessary to address the parties’ Objections to the Recommendation.
A. FACTUAL BACKGROUND
Briefly, Plaintiffs are elite female taekwondo athletes who competed on behalf of the United States at international sporting events, including the Olympics. (Doc. # 68 at 2.)
Defendant USOC is the federally chartered corporation with “exclusive jurisdiction” over “all matters pertaining to United States participation in the Olympic Games, the Paralympic Games, and the Pan-American Games.” 36 U.S.C.
§ 220503(3)(A); 36 U.S.C. § 220502(a); see also (Doc. # 68 at 17.) Congress has empowered Defendant USOC to “organize, finance, and control the representation of the United States in . . . the Olympic Games” and other sanctioned competitions directly or through a sport’s national governing body and to “facilitate, through orderly and effective administrative procedures, the resolution of conflicts or disputes that involve any of its members and any amateur athlete, coach, . . . national governing body, or amateur sports organization and that arise in connection with their eligibility for and participation” in protected international competitions. 36 U.S.C. §§ 220505(c)(3), (5).
Defendant USAT is the national governing body (“NGB”) for the sport of taekwondo, recognized and regulated by Defendant USOC pursuant to 36 U.S.C. § 220505(c)(4). (Doc. # 68 at 17, 21.) It is a not-for-profit federation that, like the NGBs of scores of other sports, is charged with sponsoring and arranging amateur athletic competitions in the sport. See 36 U.S.C. §§ 220501(b)(3), (8). It also selects American taekwondo athletes, officials, and coaches to participate in the Olympics and similar elite, international competitions. (Doc. # 68 at 22.)
Defendant Jean Lopez was the head coach of the American taekwondo teams at the 2004, 2008, 2012, and 2016 Olympic Games, and Defendant Steven Lopez, his brother, is a three-time Olympic taekwondo medalist for the United States. ( Id. at 19.) Plaintiffs describe Defendant Steven Lopez as “taekwondo’s biggest star” and state that in the 2000s, he and Defendant Jean Lopez, along with their other siblings, were known across the country “as the ‘First Family’ of taekwondo.” ( at 9.)
Plaintiffs allege that Defendants inflicted on them and other American female taekwondo athletes “forced labor and services, sex trafficking, and other travesties.” ( at 2.) They contend that the Lopez Defendants, “the primary perpetrators,” “raped numerous female taekwondo athletes” and that Defendant USOC and Defendant USAT (together, the “Institutional Defendants”) facilitated the Lopez Defendants’ sex crimes and “protected [the Lopez brothers] from law enforcement and suspension by Team USA.” ( Id. at 3.) Plaintiffs’ claims arise from two time periods:
[F]irst, the underlying forced labor and services and sex trafficking of Plaintiffs . . . from 1997 to 2010, and second, the cover-up of this misconduct, . . . which occurred from 2006 to 2008 and then from 2015 to 2018.
( Id. at 5.) They contend that during the second time period, Defendants USOC and USAT “formed an enterprise (along with the Lopez [Defendants]) to obstruct and interfere with efforts to prosecute or remove the Lopez brothers from taekwondo” and that Defendants’ obstructionist conduct included making “false and corrupting statements to Congress.” ( )
B. PROCEDURAL HISTORY
Plaintiffs initiated this litigation against Defendants on April 25, 2018, see (Doc. # 1), and have twice amended their Complaint, see (Doc. ## 6, 64, 68). Plaintiffs’ Second Amended Complaint (the “SAC”), filed August 24, 2018, is the operative pleading. (Doc. # 68.) Plaintiffs assert 21 causes of action against Defendants and the United States Center for SafeSport (“SafeSport”). [1] ( ) The Court organizes the claims into three categories:
Claims Arising Under the Trafficking Victims Protection Act (“TVPA”) , Pub. L. No. 106-386, 114 Stat. 1466 (2000) (codified as amended in scattered sections 8, 18, and 22 U.S.C.) [2]
1. Claim 1: Plaintiff Mandy Meloon’s claim of forced labor, in violation of 18 U.S.C. §§ 1589(a), 1595(a), and 2255, against Defendant Steven Lopez; 2. Claim 2: Plaintiff Mandy Meloon’s claim of sexual exploitation, transportation, and illegal sexual activity, in violation of 18 U.S.C. §§ 2241(c), 2243, 2421, 2422, 2423(a)–(c), and 2255, against Defendant Jean Lopez;
3. Claim 3: Plaintiff Gaby Joslin’s claim of forced labor, in violation of 18 U.S.C. §§ 1589(a) and 1595(a), against Defendant Steven Lopez; 4. Claim 4: Plaintiff Gaby Joslin’s claim of forced labor, in violation of 18 U.S.C. §§ 1589(b) and 1595(a), against Defendant USAT; 5. Claim 5: Plaintiff Gaby Joslin’s claim of trafficking with respect to forced labor, in violation of 18 U.S.C. §§ 1590(a) and 1595(a), against Defendant Steven Lopez and Defendant USAT;
6. Claim 6: Plaintiff Gaby Joslin’s claim of sex trafficking of children, or by force, fraud, or coercion, in violation of 18 U.S.C. §§ 1591(a)(1) and 1595(a), against Defendant Steven Lopez and Defendant USAT; 7. Claim 7: Plaintiff Gaby Joslin’s claim of benefitting from a venture that sex traffics children, or by force, fraud, or coercion, in violation of 18 U.S.C. §§ 1591(a)(2) and 1595(a), against Defendant USAT; 8. Claim 8: Plaintiff Amber Means’s claim of forced labor, in violation of 18 U.S.C. §§ 1589(a), 1595(a), and 2255, against Defendant Steven Lopez; [3] 9. Claim 9: Plaintiff Amber Means’s claim of forced labor, in violation of 18 U.S.C. §§ 1589(b) and 1595(a), against the Institutional Defendants; 10. Claim 10: Plaintiff Amber Means’s claim of trafficking with respect to forced labor, in violation of 18 U.S.C. §§ 1590(a), 1595(a), and 2255, against Defendant Steven Lopez;
11. Claim 11: Plaintiff Amber Means’s claim of sex trafficking of children, or by force, fraud, or coercion, in violation of 18 U.S.C. §§ 1591(a)(1), 1595(a), and 2255, against the Lopez Defendants and the Institutional Defendants; 12. Claim 12: Plaintiff Amber Means’s claim of benefitting from a venture that sex traffics children, or by force, fraud, or coercion, in violation of 18 U.S.C. §§ 1591(a)(2), 1595(a) and 2255, against the Institutional Defendants; 13. Claim 13: Plaintiff Amber Means’s claim of sexual exploitation, transportation, and illegal sexual activity, in violation of 18 U.S.C. §§ 2242, 2421, 2422, 2423(a)–(c), and 2255, against Defendant Steven Lopez; 14. Claim 14: All Plaintiffs’ claim of obstruction, attempted obstruction, and interference with enforcement, in violation of 18 U.S.C. §§ 1590(b), 1591(d), 1595(a), and 2255, against the Institutional Defendants and SafeSport; [4] Claim Arising Under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) , 18 U.S.C. §§ 1961–68
15. Claim 15: All Plaintiffs’ claim of violation of RICO, 18 U.S.C. § 1962(d), against all Defendants;
Claims Arising Under State Common Law
16. Claim 16: All Plaintiffs’ claim of negligent supervision against the Institutional Defendants;
17. Claim 17: All Plaintiffs’ claim of negligent retention against the Institutional Defendants;
18. Claim 18: All Plaintiffs’ claim of defamation against the Lopez Defendants and Defendant USAT;
19. Claim 19: All Plaintiffs’ claim of negligence against the Institutional Defendants and SafeSport;
20. Claim 20: All Plaintiffs’ claim of gross negligence against the Institutional Defendants and SafeSport; and
21. Claim 21: All Plaintiffs’ claim of outrageous conduct against Defendant USOC and SafeSport.
See ( id. at 139–84.) Plaintiffs bring these claims on their own behalf and on behalf of two proposed nationwide classes: the “Injunction Class,” defined as “[a]ll USOC- governed female athletes (subject to the USOC’s ‘commercial terms’ page or any other contract,” and the “Damages Class,” defined as “[a]ll USOC-governed female athlete[s] (subject to the USOC’s ‘commercial terms’ page or any other contract[)] . . . who (1) participated in taekwondo from 2003 to present and (2) traveled or trained with Jean Lopez, Peter Lopez, or Steven Lopez.” ( at 134.) Plaintiffs later voluntarily withdrew Claims 1, 2, 6, 7, 11, 12, and 18 (Doc. # 139 at 3) and dismissed as a defendant SafeSport (Doc. # 223).
On August 24, 2018, Defendants moved to dismiss Plaintiffs’ claims pursuant to Federal Rule of Civil Procedure 12(b)(6). The Lopez Defendants jointly filed a Motion to Dismiss (Doc. # 106); Defendant USOC filed a combined Motion to Dismiss and to Strike Class Action Allegations (Doc. # 108); and Defendant USAT filed a Motion to Dismiss (Doc. # 109). Plaintiffs responded to all three motions in an omnibus filing on November 1, 2018. (Doc. # 139.) Two weeks later, Defendants replied in support of their Motions to Dismiss. (Doc. ## 155, 157, 158.) At Defendant USOC’s request (Doc. # 175), Magistrate Judge Hegarty heard oral arguments on Defendant USOC’s Motion to Dismiss and to Strike on January 23, 2019 (Doc. # 203). [5]
Magistrate Judge Hegarty issued an exhaustive Recommendation on Defendants’ Motions to Dismiss on March 6, 2019, suggesting that the Court grant in part and deny in part the Motions to Dismiss. (Doc. # 218.) As to Plaintiffs’ TVPA claims, Magistrate Judge Hegarty first examined “preliminary matters,” including the applicable statute of limitations, the definition of “labor” and “services” in Sections 1589(a) and 1590(a), and the definition of “venture” in Section 1589(b). ( at 12–24.) He then turned to Defendants’ arguments regarding the sufficiency of Plaintiffs’ TVPA claims and recommended that the Court dismiss Claim 5 as alleged against Defendant USAT and Claim 14 as alleged against Defendant USOC. ( at 24–46.) Magistrate Judge Hegarty recommended that Claim 15, the claim alleging that Defendants violated RICO, be dismissed in its entirety. ( Id. at 46–54.) He next assessed Plaintiffs’ state common law claims and advised the Court to dismiss Claim 16 in its entirety; Claim 17 in its entirety; Claim 19 as alleged against Defendant USAT; and Claim 20 as alleged against Defendant USAT. ( at 54–66.) Because “Plaintiffs withdrew the majority of their claims against [Defendant] Jean Lopez” and he recommended that the RICO claim be dismissed, Magistrate Judge Hegarty concluded that Defendant Jean Lopez should be dismissed from the case. ( at 72.) Turning to Defendant USOC’s request to strike Plaintiffs’ class action allegations pursuant to Rule 12(f) (Doc. # 108 at 25), Magistrate Judge Hegarty recommended that the Court strike Plaintiffs’ proposed Damages Class as overbroad. (Doc. # 218 at 69.)
All parties object to various portions of the Recommendation. Defendant USOC, the Lopez Defendants, and Defendant USAT filed separate Objections on March 20, 2019 (Doc. ## 224–26), and Plaintiffs filed an omnibus Response on April 3, 2019 (Doc. # 233). Plaintiffs also filed an Objection to the Recommendation on March 20, 2019 (Doc. # 227), to which Defendant USOC and Defendant USAT both responded on April 3, 2019 (Doc. ## 232–33). Defendants’ Motions to Dismiss, Magistrate Judge Hegarty’s Recommendation, and the parties’ Objections are ripe for the Court’s review.
II. APPLICABLE LEGAL PRINCIPLES
A. REVIEW OF A RECOMMENDATION
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge’s [recommended] disposition that has been properly objected to.” In conducting its review of proper objections, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
An objection is properly made if it is both timely and specific.
United States v.
One Parcel of Real Property Known As 2121 East 30th Street
,
Where no party objects to the recommendation of a magistrate judge, “the district
court is accorded considerable discretion with respect to the treatment of unchallenged
magistrate reports. In the absence of timely objection, the district court may review a
magistrate [judge’s] report under any standard it deems appropriate.”
Summers v.
Utah
,
B. DISMISSAL PURSUANT TO RULE 12(B)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to
dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). “The court’s function on a Rule 12(b)(6) motion is not to weigh
potential evidence that the parties might present at trial, but to assess whether the
plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be
granted.”
Dubbs v. Head Start, Inc.
,
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.”
Hall
v. Bellmon
,
However, the court need not accept conclusory allegations without supporting
factual averments.
S. Disposal, Inc., v. Tex. Waste
,
III. DISCUSSION
The Court addresses the parties’ various objections to Magistrate Judge Hegarty’s analysis by claim, in chronological order.
A. PLAINTIFFS’ TVPA CLAIMS
Of their TVPA claims, Plaintiffs have withdrawn Claims 1, 2, 6, 7, 11, and 12.
(Doc. # 139 at 3.)
1. Claim 3: Plaintiff Joslin’s claim of forced labor, in violation of 18 U.S.C. §§ 1589(a) and 1595(a), against Defendant Steven Lopez In Claim 3, pursuant to 18 U.S.C. § 1595(a), Plaintiff Joslin alleges that Defendant Steven Lopez violated 18 U.S.C. §§ 1589(a)(2) and (4) by obtaining her “labor and services”—namely, her “forced sexual services”—“by means of serious harm” or threats thereof and “through a scheme, plan, or pattern intended to cause [her] to believe that, if . . . she did not perform such labor or services, she would suffer serious harm or physical restraint.” (Doc. # 68 at 142.) Plaintiff Joslin asserts that when Defendant Steven Lopez coached her at a tournament in Bonn, Germany in April 2006, he entered her hotel room on the night before her first match, turned on a “graphic pornographic movie,” “pinned [her] to the bed, face down, pulled down her pants and mounted her,” “penetrated [her], ejaculated inside her, and left the room.” ( at 124.) Plaintiff Joslin contends that during that incident, “[i]t was clear . . . that Steven required sex before he would address his responsibilities as her coach.” ( ) She alleges that she “continued to allow Steven to have sexual intercourse with her” until 2010 “out of fear of the Lopez brothers.” ( at 125.)
Section 1595 provides a civil cause of action for victims of any crime under Chapter 77, Title 18 of the United States Code. 18 U.S.C. § 1595. Section 1589 prohibits forced labor or services:
(a) Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means-- (1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person; (2) by means of serious harm or threats of serious harm to that person or another person;
(3) by means of the abuse or threatened abuse of law or legal process; or
(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint,
shall be punished as provided under subsection (d).
18 U.S.C. § 1589(a). “One can violate the statute either as a primary offender” under
Section 1589(a) “or simply by benefitting financially from participation in a ‘venture’ with
the primary offender” under Section 1589(b).
Bistline v. Parker
,
The Lopez Defendants moved to dismiss Claim 3 on the grounds that it is “barred by the statute of limitations, as well as the plain meaning of the statute,” and that Plaintiffs “fail to adequately allege that they were forced to provide any labor or services.” (Doc. # 106 at 6–10.)
a. Magistrate Judge Hegarty’s Recommendation Magistrate Judge Hegarty recommended that “the Lopez Defendants’ Motion to Dismiss Claim 3 be denied.” (Doc. # 218 at 29.) As to the statute of limitations, Magistrate Judge Hegarty discussed the applicable statute of limitations for all TVPA claims in his analysis of “preliminary matters.” ( Id. at 12–16.) The parties’ dispute over the applicable limitations period is rooted in the legislative history of the TVPA, which Magistrate Judge Hegarty summarized:
Congress originally passed the Victims of Trafficking and Violence Protection Act in 2000. This Act created only criminal penalties for conduct currently prohibited in 18 U.S.C. §§ 1589 and 1590. In 2003 , Congress amended the Act to add a private right of action for victims of violations of §§ 1589, 1590, or 1591 at § 1595 . At the time, the statute carried a four- year limitations period for filing civil actions . Congress amended the TVPA’s limitations period to ten years on December 23, 2008 .
(
Id.
at 12–13) (emphasis added) (internal citations omitted). Persuaded by the logic of
the Court of Appeals for the Fourth Circuit in
Cruz v. Maypa
,
Any of Plaintiffs’ TVPA claims that were unexpired when Congress amended the Act [on December 23, 2008] to include a ten-year limitations period are timely to the extent they fall within ten years of the filing the First Amended Complaint [(May 4, 2018)].
(Doc. # 218 at 13–15.) As applied to Claim 3, Magistrate Judge Hegarty reasoned that Plaintiff Joslin’s claim is timely “because some of the alleged sexual conduct occurred after May 4, 2008.” ( at 27.)
Magistrate Judge Hegarty then found that the SAC “plausibly alleges [Defendant]
Steven Lopez] obtained [Plaintiff Joslin’s] services via means prohibited in
[Section] 1589(a)(1)–(4).” ( at 27–29.) He had previously explained in his discussion
of preliminary matters that “labor and services,” as used in Sections 1589(a) and
1590(a), covers coerced sexual acts such as the “pay-to-play sexual acts alleged in the
SAC.” (
Id.
at 16–18) (citing
United States v. Kaufman
,
b. Objections to the Recommendation and the Court’s Review The Lopez Defendants reprise two arguments in their Objection that they previously made in their Motion to Dismiss: that Claim 3 is barred by the statute of limitations “that existed at the time that [the claim] arose” and that Plaintiffs fail to state a claim upon which relief can be granted. (Doc. # 225 at 4–11.)
i. Statute of Limitations for TVPA Claims The Court concludes that for Claim 3 and Plaintiffs’ other TVPA claims, the TVPA’s existing ten-year statute of limitations applies—even to claims based on conduct that allegedly occurred when the TVPA had a four-year limitations period (before December 23, 2008), so long as the claim had not yet been barred by the four- year limitation when the ten-year limitation was passed into law. It thus affirms Magistrate Judge Hegarty’s assessment of the statute of limitations applicable to Plaintiffs’ TVPA claims and rejects the Lopez Defendants’ argument that Claim 3 is time barred.
Like Magistrate Judge Hegarty, the Court is persuaded by the Fourth Circuit’s
reasoning in
Cruz
. The plaintiff in
Cruz
alleged that she was forced to work for the
defendants at well-below minimum wages from 2002 until she escaped in January
2008.
The Fourth Circuit held that “applying the [TVPA’s] extended limitations period to
claims that were unexpired at the time of its enactment”—December 23, 2008—“does
not give rise to an impermissible retroactive effect.” at 145. To reach that
conclusion, the Fourth Circuit applied the “framework for determining whether a statute
applies retrospectively to pre-enactment conduct” that is set forth in
Landgraf v. USI
Film Products
,
Accordingly, the Fourth Circuit rejected the defendants’ argument that applying the TVPA’s extended limitations period to claims that were unexpired at the time of its extension was impermissibly retroactive. Id . Whether the plaintiff’s TVPA claims could proceed, it continued, would depend “on whether they were still alive under the old four- year statute of limitations period when Congress enacted the new statute of limitations on December 23, 2008.” Because that date was more than four years after the plaintiff began working for the defendants, the Fourth Circuit remanded the case to the district court to determine whether the plaintiff’s TVPA claims warranted equitable tolling “until December 23, 2004, four years before” Congress extended the TVPA’s limitations period. at 146.
Numerous other courts, including one in this jurisdiction, have reached similar
conclusions that TVPA’s ten-year statute of limitations applies if the plaintiff’s claims
were alive when Congress amended the TVPA on December 23, 2008, to lengthen the
statute of limitations.
See, e.g.
,
Camayo v. John Peroulis & Sons Sheep, Inc.
, Nos. 10-
cv-00772, 11-cv-001132,
The Court adopts the reasoning of the Fourth Circuit and rejects the Lopez
Defendants’ argument that applying the ten-year limitations period to Claim 3 and
Plaintiffs’ other TVPA claims is an “improper retroactive application under
Landgraf
because it involves the creation of additional liability for Steven Lopez.” (Doc. # 225 at
8.) Claim 3 was not expired on December 23, 2008, when Congress extended the
TVPA limitations period to ten years. By applying the ten-year statute of limitations, the
Court does not expose Defendant Steven Lopez to any new legal consequences; it
“merely prolongs the time during which legal consequences can occur.” 773 F.3d at
145;
see also Camayo
,
The Lopez Defendants’ Objection does not persuade the Court otherwise. [6] The Lopez Defendants attempt to distinguish Cruz from their case by describing the Fourth Circuit as “carv[ing] out a narrow distinction to the rule against retroactivity for claims to which an ‘equitable tolling’ basis existed, to distinguish the claims as ‘unexpired.’” (Doc. # 225 at 7.) In this case, they contend, “Plaintiffs are not entitled to the remedy of equitable tolling” because “the facts that existed in Cruz to justify equitable tolling do not exist in the present case.” ( ) That completely mischaracterizes the Fourth Circuit’s opinion in Cruz and Plaintiffs’ theory of this case. Notably, the Fourth Circuit did not consider the doctrine of equitable tolling until after it had concluded that “applying the [TVPA’s] extended limitations period to claims that were unexpired at the time of its enactment does not give rise to an impermissible retroactive effect.” Only after so concluding did it address equitable tolling to determine whether the plaintiff’s TVPA claims were unexpired under the previous four-year limitations period when Congress extended the limitations period to ten years on December 23, 2008. Cruz , 773 F.3d at 145. In this case, there is no question that Claim 3 was unexpired when Congress amended TVPA’s statute of limitations in late 2008. The Court agrees with Plaintiffs that they “do not assert—nor do they need to—that the limitations period for their claims should be equitably tolled.” (Doc. # 231 at 17.)
For the foregoing reasons, the Court affirms Magistrate Judge Hegarty’s conclusion that Claim 3 is not time-barred.
ii.
Sufficiency of Factual Allegations
Seeing no clear error in his analysis, the Court affirms Magistrate Judge
Hegarty’s determination that Plaintiffs’ Claim 3 plausibly alleges a claim against
Defendant Steven Lopez.
See
(Doc. # 218 at 29);
Summers
,
In their Objection, the Lopez Defendants state that “Plaintiffs’ TVPA claims,”
Claims 3, 5, 8, 10, and 13, "are not sufficiently pled” because the SAC is “long on
conclusory allegations and utterly devoid of the requisite factual specificity.” (Doc.
# 225 at 10.) The Lopez Defendants did not raise this argument in their Motion to
Dismiss. Rather, they argued therein that Claim 3 must be dismissed for failure to state
a claim because Plaintiffs did not adequately allege “that they were forced to provide
any labor or services” to the Lopez Defendants. (Doc. # 106 at 8.) According to the
Lopez Defendants’ Motion to Dismiss, Plaintiffs “voluntarily remained” on the national
taekwondo team and their alleged sexual conduct was “their contributions to
[D]efendants USOC and/or USAT.” (Doc. # 106 at 8.) Because the Lopez Defendants
did not previously argue that Claim 3 makes only conclusory statements and is devoid
of factual allegations, this argument is deemed waived.
See Marshall
,
Moreover, the Lopez Defendants’ objection that Plaintiffs’ TVPA claims are not sufficiently pled is improper due to lack of specificity; it fails to even mention Magistrate Judge Hegarty’s analysis of the sufficiency of Claim 3. See (Doc. # 225 at 10–11.) Because their objection is not properly made, the Court reviews the part of the Recommendation to which they object under a clear error standard. See Summers , 927 F.2d at 1167. Finding no clear error, the Court affirms this portion of the Recommendation.
In sum, the Court is satisfied upon its de novo review that Magistrate Judge Hegarty correctly concluded that Claim 3 is timely and is adequately pled. The Court thus denies the Lopez Defendants’ Motion to Dismiss Claim 3.
2. Claim 4: Plaintiff Joslin’s claim of forced labor, in violation of 18 U.S.C. §§ 1589(b) and 1595(a), against Defendant USAT Claim 4 alleges that Defendant USAT is liable under Section 1589(b) because it “knowingly benefitted from participation in a venture with [Defendant] Steven Lopez, knowing or in reckless disregard of the fact that the venture was engaging in the . . . obtaining of [Plaintiff Joslin’s] labor or services by means of . . . serious harm or threats of serious harm.” (Doc. # 68 at 143.) Plaintiff Joslin asserts that she “reported Defendant Steven Lopez’s abuse” to Defendant USAT. ( ) Defendant USAT benefitted from Defendant Steven Lopez’s conduct, Plaintiffs continue, “by collecting money through sponsorships, grants, and for medals achieved at competitions, and for his recruitment and training of other elite taekwondo athletes, despite indications that [Plaintiff] Joslin was being abused and raped.” ( at 144.)
As the Court stated above, pursuant to Section 1589(b), one can be liable for violation of Section 1589’s prohibition on forced labor or services “simply by benefitting financially from participation in a ‘venture’ with the primary offender.” Bistline , 901 F.3d at 871. Section 1589(b) provides:
(b) Whoever knowingly benefits, financially or by receiving anything of value, from participation in a venture which has engaged in the providing or obtaining of labor or services by any of the means described in subsection (a), knowing or in reckless disregard of the fact that the venture has engaged in the providing or obtaining of labor or services by any of such means, shall be punished as provided in subsection (d).
18 U.S.C. § 1589(b). The term “venture” “has not be defined in the context of [Section]
1589(b).”
Bistline
,
Because the venture liability provisions in Sections 1595(a), 1589(b), and 1591(d) were not added to the TVPA until December 23, 2008, Defendant USAT moves to dismiss Claim 4, as well as Claims 5, 6, 7, 9, 11, 12, and 14, on the ground that Section 1595(a) “cannot be applied retroactively to support a civil cause of action for misconduct that allegedly occurred prior to December 23, 2008.” (Doc. # 109 at 9–10.) It argues that Claim 4 must be dismissed because “all of the Lopez [b]rothers’ relevant alleged misconduct directed towards Plaintiffs” and its own alleged conduct took place before 2006, “prior to authorization of civil claims against . . . those who benefit from participation in a venture in violation of the chapter.” ( at 10–11.) However, Defendant USAT did not explain its characterization that Plaintiffs’ TVPA claims, including Claim 4, “involve conduct prior to December 23, 2008,” but no conduct thereafter. See ( id. at 13–9.)
a. Magistrate Judge Hegarty’s Recommendation Magistrate Judge Hegarty decided that Plaintiff Joslin “has plausibly stated a claim against [Defendant] USAT under [Section] 1589(b)” and recommended that Defendant “USAT’s Motion to Dismiss Claim 4 be denied.” (Doc. # 218 at 31.) By noting that Claim 4 is only “valid” for alleged conduct that took place between December 23, 2008, and May 4, 2018, he implicitly agreed with Defendant USAT that Sections 1589(b) and 1591(d) cannot support a claim based on conduct that took place before those subsections were enacted on December 23, 2008. See ( id. at 29.)
The bulk of Magistrate Judge Hegarty’s discussion of Claim 4 was an application of the four elements of a Section 1589(b) claim to Plaintiffs’ allegations. See ( id. at 29– 31.) He concluded that Plaintiffs’ SAC satisfies all four elements. ( Id. ) First, the allegations “plausibly establish that the relationship between [Defendant] Steven Lopez and [Defendant] USAT is a venture.” ( Id. at 30.) Second, Defendant USAT does not dispute that it “knowingly benefitted from its relationship with [Defendant] Steven Lopez.” ( ) Magistrate Judge Hegarty cited Defendant Steven Lopez’s participation in the 2016 Olympics and 2017 World Championships as instances “well within the period that the claim is available” when Defendant USAT “benefitted from th[e] relationship.” ( ) Third, “the SAC plausibly alleges the venture engaged in obtaining [Plaintiff] Joslin’s labor or services;” but for the venture, Magistrate Judge Hegarty explained, Defendant Steven Lopez “would not have obtained—nor have been able to obtain— [Plaintiff] Joslin’s sexual services.” ( Id. at 30–31.) And fourth, in light of Plaintiffs’ allegations that Defendant USAT “began an investigation of the Lopez brothers in 2014” and hired an investigator, Donald Alperstein, in March 2015, see (Doc. # 68 at 60–61, 82), Plaintiffs “plausibly allege[] [Defendant] USAT knew or recklessly disregarded that [Defendant] Steven [Lopez] had obtained the services of Plaintiffs.” (Doc. # 218 at 31.)
b. Objections to the Recommendation and the Court’s Review
Defendant USAT’s objection to Magistrate Judge Hegarty’s recommendation that
its Motion to Dismiss be denied as to Claim 4 (and Claim 9) raises an entirely new
argument in favor of dismissal.
See
(Doc. # 226 at 4–6.) It contends that Plaintiff Joslin
does not have standing to assert Claim 4 because “[t]here is no nexus between [its]
alleged violation of 18 U.S.C. § 1589(b) and the damages alleged under Plaintiffs’
forced labor claims.” ( at 4.) To the best of the Court’s understanding, Defendant
USAT’s position is that Plaintiff Joslin is without standing to bring Claim 4 because
Section 1595(a) “authorizes the victim of a violation of [Section] 1589 to bring a civil
action for damages,” but Plaintiff Joslin was “no longer” a “victim[] in the alleged
venture” “by the time [Defendant] USAT allegedly learned of [Defendant] Steven
Lopez’s venture in 2014 or 2015 and by the time [it] allegedly knowingly benefitted from
the venture in 2016 and 2017” because she is a “former member[s] of USAT and . . .
had stopped competing in taekwondo, at the latest, in approximately 2011.” ( at 5–6.)
This argument is completely different than the one Defendant USAT raised in its Motion
to Dismiss and its Reply in support thereof. As such, for purposes of this Court’s review
of the Recommendation, Defendant USAT waived this argument,
see Marshall
, 75 F.3d
at 1426, and the Court declines to consider it.
See Stout
,
There is no clear error in Magistrate Judge Hegarty’s analysis of Claim 4.
See
Summers
,
3. Claim 5: Plaintiff Joslin’s claim of trafficking with respect to forced labor, in violation of 18 U.S.C. §§ 1590(a) and 1595(a), against Defendant Steven Lopez and Defendant USAT Bringing Claim 5 pursuant to the civil remedy provision of Section 1595(a), Plaintiff Joslin asserts that Defendant Steven Lopez and Defendant USAT violated 18 U.S.C. § 1590, which imposes liability for human trafficking. (Doc. # 68 at 144–45.) Specifically, the SAC alleges that Defendant Steven Lopez “knowingly recruited and fraudulently enticed [Plaintiff Joslin] to come to Bonn, Germany, with the intention of forcing her into sexual labor and services for him.” ( at 144.) It further alleges that Defendant USAT, “through [its] agent, [Defendant] Steven Lopez, knowingly transported [Plaintiff Joslin] to Bonn, Germany, and to various tournaments and training centers between 2006 and 2010.” ( at 145.)
The TVPA imposes liability for trafficking, which is separate and distinct from
liability for forced labor or services.
Baxla v. Chaudhri
,
Whoever knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of this chapter shall be fined under this title or imprisoned not more than 20 years, or both.
18 U.S.C. § 1590(a).
Defendant USAT moved to dismiss Claim 5, as well as Plaintiffs’ other claims under Section 1595(a) (Claims 3, 6, 7, 9, 11, 12, and 14), “because [Section 1595(a)] cannot be applied retroactively to support a civil cause of action for misconduct that allegedly occurred prior to December 23, 2008,” when Section 1595(a) was amended to include liability for one who knowingly benefits from participation in a venture engaged in a TVPA violation. (Doc. # 109 at 9–13.) It appears from this argument that Defendant USAT is interpreting Plaintiffs’ claims as asserting Defendant USAT is liable as a participant in a venture, rather than liable as a principal. See ( id. ) However, in their omnibus Response to the Motions to Dismiss, Plaintiffs clarified their theory that Defendant “USAT is guilty as a principal for the trafficking of [Plaintiff Joslin] from late 2008 until 2010, as it provided her to [Defendant] Steven [Lopez] and transported her . . . knowing or in reckless disregard of the fact that he would continue to use her for her sexual services.” (Doc. # 139 at 22.)
The Lopez Defendants moved to dismiss Claim 5 on the basis that the claim is
“barred by the statute of limitations, as well as the plain meaning of the statute.” (Doc.
# 106 at 6–10.) They also argued that Plaintiff Joslin “fail[s] to adequately plead
trafficking against [the Lopez Defendants] within the meaning” of Section 1590(a). ( at 14.) Contrasting their case with one in which the defendant recruited a housekeeper
“to make the defendant’s husband happy,” the Lopez Defendants asserted that
“Plaintiffs in this case were not recruited to join USAT to provide any labor or services in
the form of sexual favors for [Defendant Steven Lopez].” (
Id.
) (citing
Roe v. Howard
,
No. 1:16-cv-562,
a. Magistrate Judge Hegarty’s Recommendation Magistrate Judge Hegarty began by resolving “[t]he critical dispute among the parties”—"the word ‘for’ in [Section] 1590(a).” (Doc. # 218 at 31–31.) Drawing on the definition of “for” in Black’s Law Dictionary, he determined that “Plaintiffs’ [Section] 1590(a) claim will proceed if they allege a Defendant recruited, harbored, transported, provided, or obtained [Plaintiff] Joslin ‘for the benefit of’ her coerced sexual services.” ( Id. at 32.)
He recommended that the Court grant Defendant USAT’s Motion to Dismiss as to Claim 5 because he saw no allegation in the “entirety of the SAC” that Defendant “USAT (as the principal) transported [Plaintiff] Joslin for [Defendant] Steven [Lopez] to obtain sexual services from her.” (Doc. # 218 at 34.) As Magistrate Judge Hegarty explained, Plaintiffs’ assertion that Defendant USAT knew that Defendant Steven Lopez would continue to use Plaintiff Joslin for her sexual services does not meet the TVPA’s condition “that liability as a principal requires that [Defendant] USAT ‘knowingly’ transported [Plaintiff] Joslin ‘for’ forced labor or services.” ( )
Magistrate Judge Hegarty recommended that the Lopez Defendants’ Motion to Dismiss be denied as to Claim 5 because Plaintiffs “plausibly allege” Defendant Steven Lopez transported Plaintiff Joslin for her sexual services between 2006 and 2010. ( at 32–33.) Magistrate Judge Hegarty had already rejected the Lopez Defendants’ statute of limitations argument in his discussion of “preliminary matters,” which this Court summarized in Section III(A)(1)(a) above. See ( id. at 12–16.)
b. Objections to the Recommendation and the Court’s Review Plaintiffs object to Magistrate Judge Hegarty’s recommendation that the Court dismiss Claim 5 as alleged against Defendant USAT, asserting that they allege in the SAC that Defendant USAT is liable on Claim 5 “under a venture theory of liability, . . . not solely as a principal.” (Doc. # 227 at 10.) They fault Magistrate Judge Hegarty for grasping onto the statement in their Response that Defendant “USAT is guilty as a principal for the trafficking” of Plaintiff Joslin, see (Doc. # 139 at 22), without considering another section of their Response, in which they argued that Defendant USAT is also liable on Claim 5 under the venture theory, see ( id. at 23–31). (Doc. # 227 at 10.) The two theories of liability available under Section 1595(a), they assert, “are not mutually exclusive.” ( ) With respect their venture theory of Defendant USAT’s liability, Plaintiffs note that Magistrate Judge Hegarty’s recommended dismissal was “even more improper,” given that Defendant “USAT didn’t even challenge the substance of Count 5 in its [M]otion to [D]ismiss.” ( )
Upon de novo review, the Court rejects Magistrate Judge Hegarty’s conclusion that Defendant USAT’s Motion to Dismiss should be granted as to Claim 5. As Plaintiffs made clear in their Response to the motion and reassert in their Objection, Plaintiffs assert Claim 5 against Defendant USAT pursuant to both Section 1595(a)’s principal liability and its venture liability provisions. See (Doc. # 139 at 23–31; Doc. # 227 at 10). Magistrate Judge Hegarty failed to address the latter. See (Doc. # 218 at 33–34.)
To succeed in avoiding dismissal of Claim 5 against Defendant USAT under Section 1595(a)’s venture liability, Plaintiffs must plausibly allege that Defendant USAT “knowingly benefit[ted], financially or by receiving anything of value, from participation in a venture which [Defendant USAT] knew or should have known has engaged in an act in violation” of Section 1590. 18 U.S.C. § 1595(a). The Court concludes that Plaintiffs’ allegations satisfy this standard. Their SAC alleges that Defendant USAT “knowingly benefitted from participating in a venture with [Defendant] Steven Lopez,” who it knew or should have known was transporting Plaintiff Joslin for her sexual labor or services. (Doc. # 68 at 145.) The Court also observes that Defendant USAT did not challenge the sufficiency of the allegations underlying Claim 5 in their Motion to Dismiss; it only argued that Claim 5 is timed-barred. See (Doc. # 109 at 9–13). Accordingly, the Court denies Defendant USAT’s Motion to Dismiss as to Claim 5.
In response to Magistrate Judge Hegarty’s recommendation that their Motion to Dismiss be denied as to Claim 5, the Lopez Defendants assert the same objections that they raised on Claim 3: that the claim is barred by the statute of limitations “that existed at the time that [the claim] arose” and that Plaintiffs fail to state a claim upon which relief can be granted. (Doc. # 225 at 4–11.) For the same reasons the Court rejected these arguments in Section III(A)(1)(b), it also rejects them as to Claim 5. Accordingly, the Court affirms the Recommendation as to Claim 5 alleged against the Lopez Defendants and denies the Lopez Defendants’ Motion to Dismiss Claim 5.
4.
Claim 8: Plaintiff Means’s claim of forced labor, in violation of 18
U.S.C. §§ 1589(a), 1595(a), and 2255, against Defendant Steven Lopez
In Claim 8, Plaintiff Means alleges that Defendant Steven Lopez “knowingly
obtained forced sexual services from [her] by means of serious harm or threats in
violation of 19 U.S.C. § 1589(a)(2)” and by means of “a scheme . . . intended to cause
[her] to believe that, if she did not perform such labor or services, she would suffer
serious harm of physical restraint in violation of 18 U.S.C. § 1589(a)(4).” (Doc. # 68 at
148–49.) Plaintiff Means asserts Claim 8 pursuant to TVPA’s civil remedy provision,
Section 1595(a), and pursuant to 18 U.S.C. § 2255, which provides a civil remedy to
minor victims who suffer a “personal injury” from various sex crimes,
see Doe v.
Boeland
,
The SAC asserts that, in 2007, when Plaintiff Means was 17 years old, Defendant Steven Lopez “engaged in grooming behaviors” and took her on dates. ( Id. at 129–30.) On at least two of those dates, Plaintiff Means “performed oral sex” on Defendant Steven Lopez, and he “had vaginal sex with [her]” in February 2008. ( Id. at 130.) They began having an “open sexual relationship in March 2008, when [Plaintiff Means] was 17 years old,” the SAC continues, and “had sex . . . in several states and countries” while “attending USOC and USAT sponsored events.” ( Id. at 130–31.) Plaintiff Means turned 18 years old on May 7, 2008. See (Doc. # 122 at 2); F.R.E. 201(b)(2). She alleges that in June 2008, Defendant Steven Lopez invited her to a party, “put a drug in [her] drink that caused her to pass out so that he could rape her,” and then proceeded “to rape [] her while she was passed out.” ( at 131.) Defendant Means last competed in taekwondo in April 2011. ( at 132.) She claims that in February 2013, Defendant Steven Lopez “again drugged [her]” and “pinned her to a wall and tried to kiss her.” ( Id. ) She states that she “felt that if she angered the Lopez [b]rothers, she would face retaliation” and that “she had to service the Lopez [b]rothers with her body in order to compete in USA Taekwondo and reach the Olympics.” ( Id. at 133.) She alleges that she has “suffered a variety of mental and physical symptoms as a result of the personal injuries caused by the Lopez [b]rothers, the USOC, and USAT.” ( Id. )
In their Motion to Dismiss, the Lopez Defendants argued that Claim 8 must be dismissed for three reasons. See (Doc. # 106.) First, they contended that, to the extent Claim 8 is brought pursuant to Section 2255, it is time barred because when Defendant Steven Lopez allegedly misbehaved in 2007 and 2008, Section 2255 had a statute of limitations of six years, so Plaintiff Means’s claim “expired in June 2014.” ( Id. at 3–6.) Second, the Lopez Defendants argued that to the extent Claim 8 is asserted pursuant to Section 1595 (a) of the TVPA, it (and Plaintiffs’ other TVPA claims) is time barred because Plaintiff Means does not allege “specific times, dates, or places” after August 24, 2008 (ten years prior to the SAC being filed), regarding Defendant Steven Lopez’s conduct. ( at 6–8.) Third, the Lopez Defendants argued that Claim 8 (as well as Claim 1 and Claim 3) must be dismissed because “Plaintiff fails to adequately allege that they were forced to provide any labor or services for [Defendant Steven Lopez]” under Section 1989(a). ( at 8–10.)
a. Magistrate Judge Hegarty’s Recommendation Magistrate Judge Hegarty recommended that the Lopez Defendants’ Motion to Dismiss be denied with respect to Claim 8. (Doc. # 218 at 34–37.) Regarding the portion of the claim asserted pursuant to Section 2255, Magistrate Judge Hegarty traced the history of that provision’s statute of limitations and determined that “any conduct that occurred after February 14, 2008, would now still be timely, because the conduct occurred while [Plaintiff Means] was a minor and she had brought her claim within ten years after her eighteenth birthday.” ( Id . at 37.) Though he acknowledged “factual disputes . . . as to when the conduct specifically occurred in February 2008, and portions of the claim are time-barred,” he concluded that “it is not proper to dismiss the entire claim when it is not plain from the face of the complaint that the claim is expired.” ( Id .)
As to the portion of Claim 8 brought under Section 1595(a), Magistrate Judge Hegarty stated that “any portion of the claim asserting violative conduct before May 4, 2008,” ten years prior to the filing of Plaintiffs’ First Amended Complaint, is time-barred, “but the time claim based on conduct after May 4, 2008, will survive.” ( at 35.) He then applied the elements of a Section 1589(a)(2) claim to Defendant Steven Lopez’s alleged conduct towards Plaintiff Means in June 2008 and concluded that the SAC “at least plausibly alleges that [Defendant] Steven [Lopez] obtained sexual services by threat of ‘serious harm’ necessary to support a claim under [Section] 1589(a)(2).” ( )
b. Objections to the Recommendation and the Court’s Review
The Lopez Defendants object to Magistrate Judge Hegarty’s assessment of Claim 8 with the same arguments they used in objecting to his conclusions on Claim 3 and Claim 5: first, that Claim 8, like Claims 3 and 5, is barred by the statute of limitations that existed at the time of Defendant Steven Lopez’s alleged conduct, and second, that Claim 8 and Plaintiffs’ other TVPA claims are not sufficiently pled. (Doc. # 225 at 5–11.) The Court rejected these objections in its de novo review of Claim 3 in Section III(A)(1)(b) above. The Court rejects them here for the same reasons and need not restate that analysis. It affirms and adopts Magistrate Judge Hegarty’s recommendation that the Lopez Defendants’ Motion to Dismiss be denied with respect to Claim 8.
5. Claim 9: Plaintiff Means’s claim of forced labor, in violation of 18 U.S.C. §§ 1589(b) and 1595(a), against the Institutional Defendants In Claim 9, Plaintiff Means asserts pursuant to Section 1595(a) that the Institutional Defendants are liable under Section 1589(b) because they “knowingly benefitted from participation in a venture with the Lopez brothers, knowing or in reckless disregard of the fact that the venture was engaged in the . . . obtaining of [her] labor or services by means of . . . serious harm or threats of serious harm.” (Doc. # 68 at 149– 50.) She contends that the Institutional Defendants knew or should have known about Defendant Steven Lopez’s conduct towards her because they “housed [her] at their facilities, paid her a stipend, [and] observed her performance in competitions” and because she “reported—verbally and in formal written complaints—the Lopez brothers’ abuse.” ( at 150.) The Institutional Defendants benefitted from Defendant Steven Lopez’s venture, Plaintiffs assert, “by collecting money through sponsorships, licensing, grants, publicity, medals achieved at competitions, and for his recruitment and training of other elite taekwondo athletes.” ( Id. ) Claim 9 is similar to the Plaintiff Joslin’s Claim 4 against Defendant USAT.
Defendant USOC moved to dismiss Claim 9, as well as Claims 11 and 12, because “the SAC fails to plausibly allege that [Defendant USOC] violated sex trafficking laws.” (Doc. # 108 at 6–10.) It argued that the SAC “provides no facts to support” its contention that Defendant USOC knew or recklessly disregarded that the venture was engaged in obtaining Plaintiff Means’s labor or services by means of force, “fails to allege any specific conduct by [Defendant] USOC furthering the supposed venture,” and “does not plausibly tie th[e] purported benefit [to Defendant USOC] to the USOC’s alleged knowing participation in forced labor or sex trafficking.” ( at 9–10.) Defendant USOC also asserted that while it “strongly prefer[red] to address the sex trafficking claims on their merits,” Claim 9 and Claim 12 are time barred. ( at 10.)
Defendant USAT moved to dismiss Claim 9 and Plaintiffs’ other claims brought pursuant to Section 1595(a) (Claims 4, 5, 6, 7, 11, 12, and 14) by arguing that Section 1595(a) “cannot be applied retroactively to support a civil cause of action for misconduct that allegedly occurred prior to December 23, 2008.” (Doc. # 109 at 9.)
a. Magistrate Judge Hegarty’s Recommendation Magistrate Judge Hegarty recommended that the Court deny both Institutional Defendants’ Motions to Dismiss as to Claim 9 because the SAC plausibly alleges all four elements of a Section 1589(b) claim. (Doc. # 218 at 38–40.) He rejected Defendant USOC’s Motion to Dismiss as “misunderstand[ing] the prohibited conduct under the TVPA,” clarifying that “[n]othing in Section 1595(a) requires the party to benefit from the [forced] labor or services for liability to attach” and that the party “need not be ‘involved’ in obtaining forced labor or services to be civilly liable” under the venture theory of liability. ( Id. at 39.) His analysis of these points built on his prior examination of “preliminary matters,” including the definition of “venture” as used in Section 1589(b). See ( id. at 18–24.)
b. Objections to the Recommendation and the Court’s Review
Defendant USOC raises three objections to the Recommendation’s treatment of
Claim 9. (Doc. # 224 at 2–8.) First, as it argued in its Motion to Dismiss,
see
(Doc.
# 108 at 9–10), Defendant USOC argues that Section 1589(b) of the TVPA “requires
that the
venture
engaged in the prohibited activity—
i.e.
, forced labor or sex trafficking”
and that the SAC “does not alleged a forced labor venture between [Defendant] USOC
and [Defendant] Steven Lopez.” (Doc. # 224 at 2.) Second, Defendant USOC posits
that Section 1589(b) also requires an overt act to trigger venture liability. (
Id.
at 5–7.) It
faults Magistrate Judge Hegarty for “misapply[ying] the relevant legal standard” and
asserts that his reasoning “improperly ‘ensnares conduct that the statute never
contemplated.’” ( at 7) (quoting
United States v. Afyare
,
The Court rejects all three of Defendant USOC’s objections regarding Claim 9.
First, Defendant USOC is incorrect in stating that Section 1589(b) requires that the
venture itself engaged in obtaining the labor or services by force.
See
(
id.
at 2.) In a
recent case also arising under Section 1589(b), the Court of Appeals for the Tenth
Circuit applied a broad definition of venture.
Bistline
,
While the term “venture” has not been defined in the context of § 1589(b), the First Circuit recently persuasively applied the definition from another TVPRA subsection to the forced labor context. In § 1591(e)(6), “venture” is defined as “any group of two or more individuals associated in fact, whether or not a legal entity.”
Bistline
,
In this case, considering the SAC in its entirety,
see id
. at 874 (stating that the
complaint is to be read as whole), the Court is satisfied that Plaintiffs have sufficiently
alleged that Defendant Steven Lopez and the Institutional Defendants are “associated in
fact” and therefore qualify as venture under Section 1589(b). Moreover, the unreported
Sixth Circuit case upon which Defendant USOC relies,
United States v. Afyare
, is
unpersuasive.
See
(Doc. # 224 at 2–5.) The Tenth Circuit did not mention it at all when
it recently considered the definition of venture within the context of Section 1589(b).
See Bistline
,
Second, Section 1589(b) does not require a member of a venture to have
committed overt acts in furtherance of obtaining forced labor or services in order for that
member to be civilly liable to a plaintiff. Defendant USOC relies heavily on
Ratha v.
Phatthana Seafood Co., Ltd.
, No. CV 16-4271-JFW,
Third, Defendant USOC’s objection that the SAC “lacks any plausible allegation
that [Defendant] USOC benefitted from its participation” in a venture with Defendant
Steven Lopez is simply inaccurate. (Doc. # 224 at 7–8.) The SAC plainly alleges that
Defendant USOC “benefitted (financially and otherwise) from [Defendant] Steven . . .
Lopez’s actions, including by collecting money through sponsorships, licensing, grants,
publicity, [and] for medals achieved at competitions.” (Doc. # 68 at 150.) Defendant
USOC’s objection is narrowly focused on Magistrate Judge Hegarty’s statement that
“each institution knowingly benefitted from the venture; [Defendant] Steven [Lopez]
participated in the 2016 Olympics in taekwondo.” (Doc. # 224 at 7) (citing Doc. # 218 at
38). However, the SAC includes many additional allegations as to other ways in which
Defendant USOC benefitted from its venture with Defendant Steven Lopez. For
example, Plaintiffs allege that, from 2006 until the Lopez Defendants were suspended
from the sport in 2018, the Institutional Defendants benefitted from “the ‘money and
medals’ delivered by the Lopez brothers.” (Doc. # 68 at 34–35.) When reading the
SAC as a whole, as the Tenth Circuit required in
Bistline
,
For these reasons, Defendant USOC’s three objections concerning Claim 9 are overruled. The Court affirms and adopts Magistrate Judge Hegarty’s recommendation to deny Defendant’s USOC Motion to Dismiss Claim 9.
Defendant USAT’s objection to the Recommendation as to Claim 9 is the same
objection it made to the Claim 4 recommendation, as detailed in Section III(A)(2)(b)
above. (Doc. # 226 at 4–6.) As the Court previously noted, Defendant USAT has
waived any argument regarding Plaintiffs’ standing by failing to raise it before Magistrate
Judge Hegarty, and the Court will not consider it.
See Marshall
,
6. Claim 10: Plaintiff Means’s claim of trafficking with respect to forced labor, in violation of 18 U.S.C. §§ 1590(a), 1595(a), and 2255, against Defendant Steven Lopez Plaintiff Means’s Claim 10 against Defendant Steven Lopez, which is brought pursuant to Section 1595(a) and Section 2255, is similar to Plaintiff Joslin’s Claim 5. Plaintiff Means alleges that Defendant Steven Lopez violated Section 1590(a) by knowingly recruiting and fraudulently enticing her to “come from Washington State to Houston, Texas, to Cleveland, Ohio, to Colorado Springs Colorado, to Sugar Land, Texas, to Des Moines, Iowa, to Beijing, China, and to various other cities and countries with the intention of forcing her into sexual labor and services for him.” (Doc. # 68 at 151.)
The Lopez Defendants moved to dismiss Claim 10 for the same reason they argued for dismissal of Plaintiffs’ other claims alleged pursuant Section 1595 and Section 2255 (Claims 3, 5, and 8): that the claim is time barred. (Doc. # 106 at 3–8.)
a. Magistrate Judge Hegarty’s Recommendation Magistrate Judge Hegarty recommended that the Court deny the Lopez Defendants’ Motion to Dismiss Claim 10. (Doc. # 218 at 40–41.) With respect to limitations periods, he determined that the portion of the claim arising under Section 1595(a) “would be valid” for conduct that allegedly took place between May 4, 2008, and May 4, 2018, and that the portion of the claim asserted pursuant to Section 2255 is valid for alleged conduct between February 14, 2008, and May 4, 2018. ( at 40.) In light of those limitations periods, Magistrate Judge Hegarty stated that allegations concerning Defendant Steven Lopez’s conduct towards Plaintiff Means in 2003, when he allegedly took a special interest in her and convinced her family to move to Texas so that she could train with him, are “outside the window for timely claims under either [Section] 1590 or [Section] 2255.” ( ); see (Doc. # 68 at 128–29). However, he determined that Plaintiff Means’s allegation that Defendant Steven Lopez raped her in June 2008 is timely. (Doc. # 218 at 41.)
b. Objections to the Recommendation and the Court’s Review The Lopez Defendants object to Magistrate Judge Hegarty’s assessment of Claim 10 on the same grounds they objected to his assessments of Claims 3, 5, and 8: first, that Claim 10 is barred by the statute of limitations that existed at the time of Defendant Steven Lopez’s alleged conduct, and second, that Claim 10 and Plaintiffs’ other TVPA claims are not sufficiently pled. (Doc. # 225 at 5–12.) For the same reasons the Court overruled these objections in its de novo review of Claim 3 in Section III(A)(1)(b) above, it overrules them as to Claim 10. The Court affirms and adopts Magistrate Judge Hegarty’s recommendation that the Lopez Defendants’ Motion to Dismiss be denied with respect to Claim 10.
7. Claim 13: Plaintiff Means’s claim of sexual exploitation, transportation, and illegal sexual activity, in violation of 18 U.S.C. §§ 2242, 2421, 2422, 2423(a)–(c), and 2255, against Defendant Steven Lopez Claim 13 asserts that Defendant Steven Lopez knowingly transported Plaintiff Means when she was a minor “with the intent that she engage in sexual activity for which any person could be charged with a criminal offense” and thus violated 18 U.S.C. §§ 2421, 2422, and 2423. [8] (Doc. # 68 at 155.) She brings Claim 13 pursuant to Section 2255, which provides her with a civil remedy to the extent that she was minor when she was a victim of a violation of several criminal provisions, including 18 U.S.C. §§ 2421, 2422, and 2423. ( Id. at 155–56.)
The Lopez Defendants argued that the Court must dismiss Claim 13 and Plaintiffs’ other claims asserted pursuant to Section 2255 because the claims are time barred. (Doc. # 106 at 3–6.)
a. Magistrate Judge Hegarty’s Recommendation Magistrate Judge Hegarty referred to his previous analysis of the Lopez Defendants’ timeliness argument, see (Doc. # 218 at 35–37), and repeated his determination that Plaintiff Means “may assert claims based on conduct that occurred from February 14, 2008 until May 7, 2008” under Section 2255. ( at 41–42.) Because Plaintiff Means alleges that Defendant Steven Lopez’s conduct “occurred from ‘late 2007’ until at least June 2008,” he recommended that the Court deny the Lopez Defendants’ Motion to Dismiss with respect to Claim 13. ( at 42.)
b. Objections to the Recommendation and the Court’s Review The Lopez Defendants raise the same two arguments regarding Magistrate Judge Hegarty’s treatment of Claim 13 as they did for Claims 3, 5, 8, and, 10: that it is foreign commerce, with a motivating purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.
(c) Engaging in illicit sexual conduct in foreign places.--Any United States citizen or alien admitted for permanent residence who travels in foreign commerce or resides, either temporarily or permanently, in a foreign country, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.
18 U.S.C. § 2423.
barred by the statute of limitations and that Plaintiff Means fails to state a claim for relief. (Doc. # 225 at 5–12.) For the same reasons the Court overruled these objections in its de novo review of Claim 3 in Section III(A)(1)(b) above, it overrules the objections with respect to Claim 13. The Court affirms and adopts Magistrate Judge Hegarty’s recommendation that the Lopez Defendants’ Motion to Dismiss be denied with respect to Claim 13.
8. Claim 14: All Plaintiffs’ claim of obstruction, attempted obstruction, and interference with enforcement, in violation of 18 U.S.C. §§ 1590(b), 1591(d), 1595(a), and 2255, against the Institutional Defendants Plaintiffs assert in Claim 14 that the Institutional Defendants “obstructed, attempted to obstruct, interfered, or prevented the enforcement” of Section 1590(a) and thereby violated 18 U.S.C. § 1590(b). [910] (Doc. # 68 at 156–58.) Plaintiffs allege that the Institutional Defendants impeded the enforcement of the TVPA in numerous ways, such as by ignoring and dismissing verbal and written complaints of sexual abuse and by delaying investigations of reports of sexual abuse. ( at 157–58.) They assert Claim 14 pursuant to Section 1595(a), and Plaintiff Means also asserts it pursuant to Section 2255. ( Id. at 156.)
Defendant USOC moved to dismiss Claim 14 on the ground that the claim is “facially deficient.” (Doc. # 108 at 5.) It argued that the “SAC does not identify any actual law enforcement effort that [Defendant] USOC ostensibly obstructed or how it supposedly did so.” ( )
Defendant USAT similarly argued that Claim 14 must be dismissed because Plaintiffs “fail to plead obstruction with particularity.” (Doc. # 109 at 16.) According to Defendant USAT (and implicit in Defendant USOC’s Motion to Dismiss, see (Doc. # 108 at 5)), the language of Sections 1590(b) and 1591(d) “makes it clear that the prohibited obstruction is confined to a government actor or government investigation.” (Doc. # 109 at 16.) Defendant USAT also challenged what it characterized as Plaintiffs’ “attempt to shoehorn interactions between private actors . . . into their obstruction claims by citing to allegedly false testimony given to Congress in May 2018” because “simply calling the testimony false . . . does not suffice to meet Plaintiffs’ burden to plead with particularity.” ( at 17.)
a. Magistrate Judge Hegarty’s Recommendation
Magistrate Judge Hegarty began by addressing the “parties’ first dispute,”
whether the enforcement at issues in Sections 1590(b) and 1591(d) “must be performed
by a government actor.” (Doc. # 218 at 42.) Persuaded by another district court’s
finding that obstruction of a private investigation did not violate Section 1591(d) and
citing the lack of case law “finding a violation of the TVPA for obstruction of anything
other than a government investigation,” Magistrate Judge Hegarty concluded that
“[o]bstruction of a private investigation is insufficient to state a claim of either [Sections]
1590(b) or 1951(d).” (
Id.
at 43) (citing
Jean-Charles v. Perlitz
,
Turning to the merits of Claim 14, Magistrate Judge Hegarty determined that the SAC does not allege that Defendant USOC obstructed a government investigation of a TVPA violation. ( Id. at 44–45.) “Indeed,” he wrote, “no governmental actor is present in Plaintiffs’ allegations” about Defendant USOC, and allegations that Defendant USOC interfered with Defendant USAT’s investigation of the Lopez Defendants “is simply insufficient to state a claim under the obstruction statutes.” ( Id. ) He therefore recommended that the Court dismiss Claim 14 as alleged against Defendant USOC.
However, he concluded that the SAC sufficiently alleges that Defendant USAT obstructed a government investigation of a TVPA violation. ( at 45–46.) Magistrate Judge Hegarty reviewed Plaintiffs’ allegations that the Executive Director of Defendant USAT falsely testified to the House of Representatives’ Oversight and Investigations Subcommittee that Defendant USAT did not control or limit the budget of Alperstein, the investigator it hired to pursue allegations of the Lopez Defendants’ sexual abuse. ( ) (citing Doc. # 68 at 61–62). Magistrate Judge Hegarty found “that Congress is a government actor.” ( Id. at 46.) He recommended that the Court deny Defendant USAT’s Motion to Dismiss as to Claim 14. ( Id. )
b. Objections to the Recommendation and the Court’s Review Plaintiffs object to Magistrate Judge Hegarty’s recommendation to dismiss Defendant USOC from Claim 14. (Doc. # 227 at 11–17.) They first dispute Magistrate Judge Hegarty’s determination that Sections 1590(b) and 1591(d) are concerned only with obstruction of governmental enforcement of the TPVA. ( Id. at 11–12.) Plaintiffs argue that “the plain language of Section 1590(b) does not contain the ‘government’ limitation that the Recommendation imposes” and that the Magistrate Judge erred by “skipping this step and instead weighing the persuasiveness of out-of-circuit cases.” ( Id. ) To the extent the language of Section 1590(b) is ambiguous, Plaintiffs urge that “the proposed ‘government’ limitation is belied by the incredibly broad and expensive language and remedial purpose of the Act itself.” ( Id. at 11–12.) Second, Plaintiffs argue that, even if the TVPA’s obstruction provisions are concerned only with government enforcement actions, they “allege ample government involvement” in their allegations regarding Defendant USOC. ( at 12.) They cite their allegations that Defendant USOC was directly involved “in the suspension of . . . Alperstein’s investigation and his reports to law enforcement;” and that, but for this obstructive conduct, “the Lopezes would have been turned over to the FBI and local law enforcement much sooner.” ( at 13) (citing Doc. # 68 at 62–74). Plaintiffs also cite their allegations that officials of Defendant USOC falsely testified to Congress. ( at 16–17) (citing Doc. # 68 at 50–55.)
At the outset, the Court affirms Magistrate Judge Hegarty’s determination that the
TVPA’s obstruction provisions are concerned only with governmental enforcement of
the TVPA. Obstruction of a private investigation does not give rise to liability under
Section 1590(b) or 1591(d). The cases Magistrate Judge Hegarty cited all support that
conclusion.
See, e.g.
,
Jean-Charles
,
The Court also agrees with Magistrate Judge Hegarty that Plaintiffs’ allegations
of Defendant USOC’s obstruction of the government’s enforcement of the TVPA are
insufficient. Plaintiffs’ claim that Defendant USOC interfered with Alperstein’s
investigation and delayed the Lopez brothers being turned over to law enforcement
authorities is devoid of specificity.
See
(Doc. # 68 at 62–74.) They assert, for example,
that Defendant USOC worked in concert with Defendant USAT “to obstruct the
investigation of the Lopez brothers,” but fail to assert any supporting factual averments
regarding
how
Defendant USOC did so. The Court need not accept these conclusory
allegations.
See S. Disposal, Inc.
,
Defendant USAT objects to Magistrate Judge Hegarty’s conclusion that Claim 14
sufficiently states a claim for relief against Defendant USAT on the grounds that the
Congressional hearing at which its executive allegedly lied “had nothing to do with
enforcement of 18 U.S.C. §§ 1590 or 1591,” was not governmental enforcement of the
TVPA, and cannot give rise to an obstruction claim under Section 1590(b) or Section
1591(d). (Doc. # 226 at 7–9.) Defendant USAT also asserts that dismissal of Claim 14
is necessary because Plaintiffs have not shown the required “nexus between the
allegedly obstructive act and the government proceeding” and have not alleged that
Defendant USAT and its officials had the “‘knowingly’
mens rea
requirement.” ( at
10–13.) Defendant USAT did not raise any of these arguments before the Magistrate
Judge.
See
(Doc. # 109 at 16–17.) The Court thus deems these objections waived and
declines to review them.
See Stout
,
B. PLAINTIFFS’ RICO CLAIM
1. Claim 15: All Plaintiffs’ claim of violation of RICO, 18 U.S.C. § 1962(d), against all Defendants Plaintiffs allege in Claim 15 that Defendants violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962. [11] (Doc. # 68 at 158–65.) They bring their claim on behalf of themselves and “the Class” pursuant to 18 U.S.C. § 1964(c), which provides for civil remedies for “[a]ny person injured in his business or property by reason of a violation of [S]ection 1962” of RICO. ( ) As Magistrate Judge Hegarty described, see (Doc. # 218 at 46–47), the underpinning of Plaintiffs’ RICO claim is their allegation that “[a]t all relevant times, . . . Defendants operated as an association-in-fact enterprise, which was formed for the purpose of stopping, hindering, and delaying all investigations of and enforcement actions against the Lopez brothers” and for the purpose of “making false and corrupting statements that concealed the true nature of the sex abuse and exploitation committed by the Lopez brothers and facilitated by [the Institutional Defendants].” (Doc. # 68 at 160.) Plaintiffs allege that Defendants engaged in a pattern of racketeering activity through predicate acts that included “violations of 18 U.S.C. § 1590(b), obstructing and interfering with enforcement of the TVPA, and 18 U.S.C. § 1592(c), the corruption of an official proceeding, as well as the underlying violations committed by [Defendants] in violation of [Section] 1589 (forced labor and services) and [Section] 1591 (sex trafficking).” (Doc. # 68 at 162.) Defendants all moved to dismiss Claim 15. (Doc. # 106 at 17; Doc. # 108 at 10; Doc. # 109 at 18.)
Magistrate Judge Hegarty recommended that the Court dismiss Claim 15 in its entirety because Plaintiffs “do not have standing to bring their civil RICO claim,” as they “have not alleged [a specific injury to business or property] here.” ( at 53–54.) No party objected to the Magistrate Judge’s recommendation to dismiss Claim 15. See (Doc. ## 224–27.)
After reviewing the Recommendation’s treatment of Claim 15, in addition to
Defendants’ Motions to Dismiss and Plaintiffs’ Response and the relevant legal
authority, the Court is satisfied that the recommended dismissal of Claim 15 is sound
and not clearly erroneous or contrary to law.
See Summers
,
C. PLAINTIFFS’ STATE COMMON LAW CLAIMS
Of the claims they originally asserted under state common law, Plaintiffs have withdrawn Claim 18. (Doc. # 139 at 3.)
1. Claim 16: All Plaintiffs’ claim of negligent supervision against the Institutional Defendants Plaintiffs allege in Claim 16 that the Institutional Defendants negligently supervised the Lopez Defendants, who, Plaintiffs assert, were employees of the Institutional Defendants. (Doc. # 68 at 165–66.)
Colorado law recognizes a direct tort of negligent supervision.
Settle v. Basinger
,
Both Institutional Defendants moved to dismiss Claim 16 on numerous grounds, including that the claim is time barred. (Doc. # 108 at 16–21; Doc. # 109 at 20–21.)
Magistrate Judge Hegarty concluded that Plaintiffs’ negligent supervision claim is time barred because “the last incident of alleged underlying abuse occurred in approximately 2011” and any negligent supervision claims “expired, at the latest, in 2013.” (Doc. # 218 at 56.) Seeing no rationale for equitably tolling the limitations periods, the Magistrate Judge recommended that Claim 16 be denied as untimely and the Institutional Defendants’ Motions to Dismiss be granted as to that count. ( at 57.)
No party objected to the Magistrate Judge’s recommendation to dismiss Claim 16. See (Doc. ## 224–27.)
The Court has reviewed the relevant filings and governing law, and it is satisfied
that Magistrate Judge Hegarty’s recommendation to dismiss Claim 16 is sound and not
clearly erroneous or contrary to law.
See Summers
,
2. Claim 17: All Plaintiffs’ claim of negligent retention against the Institutional Defendants Claim 17 alleges that the Institutional Defendants negligently retained the Lopez Defendants, “despite [the Institutional Defendants’] knowledge of the risks that they posed to Plaintiffs and third parties.” (Doc. # 68 at 168.)
It is not altogether clear that Colorado recognizes a distinct tort of negligent
retention. In the few cases this Court located, Colorado courts have treated claims of
negligent supervision and negligent retention as one and the same.
See, e.g.
,
Ferrer v.
Okbamicael
,
The Institutional Defendants moved to dismiss this claim at the same time and with the same arguments they used for dismissal of Plaintiffs’ negligent supervision claim. (Doc. # 108 at 16–21; Doc. # 109 at 20–21.)
Magistrate Judge Hegarty observed that “Colorado appears to treat the claims” of negligent supervision and negligent retention “as the same.” (Doc. # 218 at 57.) He reasoned that “[a]accordingly, this claim fails for the same reason as the negligent supervision claim;” “both [are] barred by the statute of limitations.” ( at 58.) He recommended that the Court dismiss Claim 17.
No party has objected to the dismissal of Claim 17.
See
(Doc. ## 224–27.)
Magistrate Judge Hegarty’s recommendation to dismiss Claim 17, like his
recommendation regarding Claim 16, is sound and not clearly erroneous or contrary to
law.
See Summers
,
3. Claim 19: All Plaintiffs’ claim of negligence against the Institutional Defendants In Claim 19, Plaintiffs allege that the Institutional Defendants breached their duties to “exercise reasonable care in relation to the safety and welfare of their member athletes, including Plaintiffs,” to “exercise reasonable care to avoid creating or maintaining unreasonable risks to the safety and welfare of their member athletes,” and to “exercise reasonable care in investigating and pursuing complaints of criminal conduct [and] sexual misconduct . . . against their member athletes.” (Doc. # 68 at 175.) Plaintiffs assert that the Institutional Defendants breached those duties in numerous ways between 2014 and 2018, such as by “[c]ausing the investigation [by] Alperstein to drag on” and then suspending the investigation “in the middle of it so the Lopez brothers could compete and coach at the 2016 Olympics,” by “[u]nreasonably delaying notifying the FBI or other law enforcement of sexual abuse,” and by “[f]ailing to properly fund or staff SafeSport.” ( at 176–77.) Plaintiffs claim they suffered “institutional abandonment,” “reputational damages,” and “severe emotional injuries” as a result of the Institutional Defendants’ negligence. ( at 178.)
To establish a negligence claim, the plaintiff must show: (1) the existence of a
legal duty to the plaintiff; (2) the defendant breached that duty; and (3) that the breach
of the duty caused the harm resulting in damages to the plaintiff.”
Keller
, 111 P.3d at
447 (citing
Ryder v. Mitchell
,
Both Institutional Defendants moved to dismiss Plaintiffs’ negligence claim. Defendant USAT contended that Plaintiffs’ negligence and gross negligence claims are time barred “to the extent such claims are based on sexual misconduct by the Lopez brothers” and that Defendant USAT owed no duty to Plaintiffs because they are all “ former athletes who stopped competing long ago.” (Doc. # 109 at 20–23.) Defendant USOC argued that Plaintiffs fail to identify an applicable legal duty because it “has no ‘member athletes,’” that Plaintiffs rely on “speculative, conclusory, and fantastical claims” of “recent conduct, plainly intended to avoid the statutes of limitations,” and that Plaintiffs fail to “plausibly allege that [Defendant USOC’s] purportedly negligent actions . . . caused any legally cognizable damages.” (Doc. # 108 at 22–24.)
a. Magistrate Judge Hegarty’s Recommendation Magistrate Judge Hegarty recommended that Court grant Defendant USAT’s Motion to Dismiss Plaintiff’s negligence claim but deny Defendant USOC’s Motion to Dismiss the claim. (Doc. # 218 at 64.)
The Magistrate Judge determined that Defendant USAT did not owe Plaintiffs a
legal duty and that Plaintiffs’ negligence claim against Defendant USAT therefore failed.
(
Id.
at 58–61.) He was persuaded by Defendant USAT’s argument that it owed no duty
to Plaintiffs because they were all
former
members of the organization during the
statutory period. (
Id.
at 59–61.) He then considered “whether [the Institutional
Defendants] owed a duty to former members of USAT to reasonably investigate their
complaints of sexual abuse” and applied the factors identified in
Taco Bell, Inc. v.
Lannon
,
Turning to Defendant USOC, Magistrate Judge Hegarty recommended that the
Court deny its Motion to Dismiss Claim 19. ( at 64.) With respect to the first element
of a negligence claim, the existence of a legal duty to Plaintiffs, he accepted Plaintiffs’
contention that Defendant USOC had “assumed a duty by intervening in the affairs of
the NGBs and of Plaintiffs, setting up SafeSport, asking Alperstein to turn his
investigation over to SafeSport . . . and inducing Plaintiffs’ reliance on [Defendant]
USOC’s help.” ( at 61–63) (quoting Doc. # 139 at 50–51) (citing
Jefferson Cty. Sch.
Dist. R-1 v. Justus By and Through Justus
,
b. Objections to the Recommendation and the Court’s Review Plaintiffs object to the recommendation to dismiss Defendant USAT from the negligence claim on the grounds that, “like [Defendant] USOC, [Defendant] USAT assumed a duty by launching an investigating and engaging in efforts to address past harms and is liable for the state law claims for the same reasons as [Defendant] USOC.” (Doc. # 227 at 18.) They also fault Magistrate Judge Hegarty for determining that Plaintiffs have not sufficiently alleged Defendant USAT owed them a legal duty, characterizing his “plainly improper” analysis on that point as “pursu[ing] this defense on [Defendant] USAT’s behalf” and “veer[ing] into fact-finding and factor-weighing (which is categorically improper at the motion to dismiss stage.” ( )
Plaintiffs waived their objection that Defendant USAT assumed a legal duty
“starting in 2014 when it engaged Mr. Alperstein to investigate the complaints of these
former athletes against the Lopez brothers, . . . to implement recommended SafeSport
policies, and to gather evidence, make reports, and initiate disciplinary or ethics
proceedings against the Lopez brothers.” ( at 21.) They did not assert it (nor any
position remotely similar to it) in their Response to Defendant USAT’s Motion to Dismiss
(in which Defendant USAT had asserted it did not owe Plaintiffs any legal duty) (Doc.
# 109 at 21–23). (Doc. # 139 at 48–49.) Rather, Plaintiffs made a policy argument that
Defendant “USAT’s duty rule would incentivize bad actors . . . to ‘expel’ victims . . . and
then claim no duty is owed to any victim because the victim is now a ‘former’ athlete.”
( ) Because Plaintiffs waived their contention that Defendant USAT assumed a legal
duty to them,
see Marshall
,
The Court rejects Plaintiffs’ contention that it was improper for Magistrate Judge
Hegarty to determine that “the
Taco Bell
factors weigh decidedly against finding a duty
to investigate allegations of misconduct by former members/athletes for purposes of
attaching liability for negligence” (Doc. # 218 at 61). (Doc. # 227 at 18–19.) Plaintiffs
offer no support for their bald assertion that “the duty factors cannot be weighed at the
Rule 12(b)(6) stage.” ( ) And this Court has located case law in which Colorado
courts have decided at the motion to dismiss stage whether a plaintiff established that
the defendant owed the plaintiff a legal duty.
E.g.
,
N.M. by and through Lopez v.
Trujillo
,
Defendant USOC objects to Magistrate Judge Hegarty’s recommendation to deny its Motion to Dismiss the negligence claim for three reasons, corresponding to the three elements of a negligence claim. (Doc. # 224 at 8–13.) First, Defendant USOC argues that the Magistrate Judge’s finding that it had assumed a duty to Plaintiff was erroneous because the Magistrate Judge did not accurately or completely apply the test developed by Colorado courts for when “this narrow doctrine applies.” ( Id. at 8–11.) Second, it asserts that the Magistrate Judge “did not consider [its] argument that the SAC fails to allege that [Defendant] USOC breached any purported duty.” ( at 11.) And third, Defendant USOC contends that Magistrate Judge Hegarty’s conclusion that Plaintiffs plausibly allege damages was unfounded. ( at 12–13.)
Upon de novo review, the Court agrees with Defendant USOC that Plaintiffs fail
to state a claim of negligence against Defendant USOC. Specifically, Plaintiffs fail to
adequately allege the third element of their negligence claim—that Defendant USOC’s
purportedly negligent conduct caused them legally cognizable damages. As Magistrate
Judge recognized (Doc. # 218 at 63), Colorado courts “have never recognized a cause
of action for emotional distress grounded in negligence without proof that the plaintiff
sustained physical injury.”
Culpepper v. Pearl Street Bldg.
,
Here, Plaintiffs have not alleged physical injury during the relevant time period as
a result of Defendant USOC’s purportedly negligent handling of the investigation of the
Lopez Defendants. The Court does not accept Plaintiffs’ conclusory allegation in Claim
19 that they “have suffered . . . physical injuries” because that allegation lacks any
supporting factual enhancement.
See
(Doc. # 68 at 178);
Iqbal
,
4. Claim 20: All Plaintiffs’ claim of gross negligence against the Institutional Defendants In Claim 20, Plaintiffs allege that the Institutional Defendants were grossly negligent in breaching their duties to Plaintiffs by “[e]ngaging in conduct that was wanton and willful, [and] reckless[] and in conscious disregard of the safety of female taekwondo athletes, including Plaintiffs.” (Doc. # 68 at 179.) As an example of such gross negligence, they contend that the Institutional Defendants “suspended an ongoing investigation and related restriction in order for [Defendant] Steven Lopez to compete and [Defendant] Jean Lopez to coach at the 2016 Olympics and 2017 World Championships.” ( at 179–81.)
Colorado courts have recognized a tort of gross negligence or willful and wanton
conduct.
See, e.g.
,
Hamill v. Cheley Colo. Camps, Inc.
,
Both Institutional Defendants argued for the dismissal of Plaintiffs’ gross negligence claim in their arguments for the dismissal of Plaintiffs’ negligence claim. Neither Institutional Defendant treated the gross negligence claim differently than the negligence claim, though Defendant USOC briefly highlighted the “higher standard” of gross negligence. See (Doc. # 109 at 20–23; Doc. # 108 at 22–24.) The Court summarized the Institutional Defendants’ arguments regarding the dismissal of Plaintiffs’ negligence claims in Section III(C)(3) above.
a. Magistrate Judge Hegarty’s Recommendation Magistrate Judge Hegarty “reach[ed] the same conclusions for this claim as Claim 19,” Plaintiffs’ negligence claim. (Doc. # 218 at 64.) He therefore recommended that Defendant USAT’s Motion to Dismiss be granted and that Defendant USOC’s Motion to Dismiss be denied as to Plaintiffs’ gross negligence claim. ( )
b. Objections to the Recommendation and the Court’s Review Plaintiffs object to Magistrate Judge Hegarty’s recommendation regarding this dismissal of Defendant USAT from their negligence and gross negligence claims; they treat their negligence and gross negligence claims as essentially the same. See (Doc. # 227 at 18–23.) First, Plaintiffs object to Magistrate Judge Hegarty’s recommendation that Defendant USAT be dismissed from their gross negligence claim because they believe that Defendant USAT “assumed a duty by launching an investigation and engaging in efforts to address past harms.” (Doc. # 227 at 18.) Plaintiffs waived this objection, as the Court described in the context of the previous claim. Next, Plaintiffs assert that Magistrate Judge Hegarty erred by applying the Taco Bell factors and finding that Defendant USAT did not owe Plaintiffs a legal duty. (Doc. # 227 at 18–19.) The Court rejects this argument for the reasons it explained in Section III(C)(3)(b) above. The Court affirms and adopts Magistrate Judge Hegarty’s recommendation to dismiss Defendant USAT from Claim 20, the gross negligence claim, because Plaintiffs fail to plausibly allege that Defendant USAT owed them a duty.
Defendant USOC objects to Magistrate Judge Hegarty’s recommendation that
the Court deny its Motion to Dismiss with respect to Plaintiffs’ gross negligence claim;
they fault him for “failing to analyze whether the SAC alleges that [Defendant] USOC
acted with the culpability to establish
gross
negligence, even though [it] highlighted the
stringent standard for that claim.” (Doc. # 224 at 13–14.) The Court agrees that the
Recommendation did not assess whether Plaintiffs’ allegations satisfy the standard of
gross negligence—“action committed recklessly, with conscious disregard for the safety
of others,”
Hamill
,
The Court agrees with Defendant USOC upon de novo review that Plaintiffs do not state a legally sufficient claim of gross negligence against Defendant USOC. The Court does not even need to reach whether Plaintiffs adequately allege that Defendant USOC acted recklessly, with conscious disregard for their safety, because Plaintiffs fail to establish that they were physically injured by Defendant USOC’s conduct between 2016 and 2018. The Court explained Plaintiffs’ failure to allege this element in Section III(C)(3)(b) above. For the same reason that Plaintiffs’ negligence claim against Defendant USOC fails, so too does their gross negligence claim against Defendant USOC. The Court therefore grants Defendant USOC’s Motion to Dismiss as to the gross negligence claim.
5. Claim 21: All Plaintiffs’ claim of outrageous conduct against Defendant USOC Finally, Plaintiffs allege in Claim 21 that Defendant USOC “engaged in extreme and outrageous conduct” by, “among other things,” “[c]ontinuing to support and clothe [Defendants] Steven and Jean Lopez with the legitimacy and authority of Team USA, despite having actual and constructive knowledge of their decades-long pattern of serial sexual predation.” [12] (Doc. # 68 at 182–83.) The SAC states that “[a]s a direct and proximate result of the outrageous conduct,” especially “the August 2018 reinstatement of [Plaintiffs’] abuser,” “Plaintiffs have suffered severe emotional distress.” ( at 184.)
The tort of outrageous conduct exists in Colorado. Churchey v. Adolph Coors
Co.
,
The elements of liability for the tort of extreme and outrageous conduct are that: 1. the defendant engaged in extreme and outrageous conduct; 2. the defendant engaged in the conduct recklessly or with the intent of causing the plaintiff severe emotional distress; and 3. The plaintiff incurred severe emotional distress which was caused by the defendant’s conduct.
Culpepper
,
[S]o outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case is one in which the
recitation of the facts to an average member of the community would arouse
his resentment against the actor, and lead him to exclaim, “Outrageous!”
Churchey
,
A person acts with intent to cause severe emotional distress when he engages in conduct with the purpose of causing severe emotional distress to another person, or he knows that his conduct is certain or substantially certain to have that result. A person acts recklessly in causing severe emotional distress in another if, at the time of the conduct, he knew or reasonably should have known that there was a substantial probability that his conduct would cause severe emotional distress to the other person.
Culpepper
,
Defendant USOC moved to dismiss Plaintiffs’ outrageous conduct claim on the grounds that Plaintiffs’ claim, which it described as being grounded “in allegations that [SafeSport] reinstated [Defendant] Jean Lopez in August 2018,” fails “to meet the bar for outrageous conduct.” (Doc. # 108 at 24–25.) Critically, it argued, “the SAC fails to allege that [Defendant] USOC played any role in the reinstatement of Jean Lopez.” ( at 24.)
a. Magistrate Judge Hegarty’s Recommendation Magistrate Judge Hegarty recommended that the Court deny Defendant USOC’s Motion to Dismiss as to Plaintiffs’ outrageous conduct claim, finding that “there are sufficient allegations that could lead a jury to conclude that ‘[Defendant USOC] acted recklessly with the knowledge that there was a substantial probability that [its] conduct would cause severe emotional distress.’” (Doc. # 218 at 66.) He cited the SAC’s allegations that Defendant USOC “secretly” worked with Defendant USAT “behind closed doors to make sure that the investigation against the Lopez brothers was delayed and obstructed because of their key roles in the 2016 Olympics,” that it and Defendant USAT “wanted” and allowed the Lopez Defendants to participate in the 2016 Olympics, and that it and Defendant USAT paid the Lopez Defendants to participate in other international competitions, such as the 2017 World Championships, “[a]midst the Alperstein investigation from 2015 [to] 2018.” ( Id. ) (citing Doc. # 68 at 63–64, 67, 71– 72).
b. Objections to the Recommendation and the Court’s Review
Defendant USOC takes issue with the Recommendation’s treatment of Claim 21
on three grounds. (Doc. # 224 at 14–15.) It first argues that “Claim 21, as pled,
involves only SafeSport’s conduct,” and that the Magistrate Judge “did not, nor could
he, conclude that [Defendant] USOC participated in or controlled those proceedings.”
(
Id.
at 14.) Second, it asserts that Magistrate Judge Hegarty “failed to undertake the
necessary analysis of outrageousness.” ( ) And third, Defendant USOC argues that
“the SAC fails to allege the required culpability: that [it] ‘intentionally or recklessly
caused severe emotional distress.’” ( at 15) (quoting
Coors Brewing Co. v. Floyd
,
Defendant USOC is correct that the Magistrate Judge erred by not examining “in
the first instance whether reasonable people may differ as to whether the conduct of the
defendant has been ‘sufficiently extreme and outrageous to result in liability.’”
See
(
id.
at 14);
Churchey
,
The Court begins its de novo review by determining if reasonable persons could
differ on whether Defendant USOC’s alleged conduct was outrageous.
See Han Ye
Lee
,
D. PLAINTIFFS’ PROPOSED CLASSES
Plaintiffs bring this action individually and on behalf of two proposed nationwide classes, the “Injunction Class” and the “Damages Class,” as the Court described in Section I(B) above. (Doc. # 68 at 134–37.) Plaintiffs define their Injunction Class, asserted under Rule 23(b)(2), as:
All USOC-governed female athletes (subject to the USOC’s “commercial terms” page or any other contract).
( at 134.) They define the Damages Class, asserted under Rule 23(b)(3) “and/or” Rule 23(c)(4), as:
All USOC-governed female athlete (subject to the USOC’s “commercial terms” page or any other contract and who (1) participated in taekwondo from 2003 to present and (2) traveled or trained with Jean Lopez, Peter Lopez, or Steven Lopez.
( )
Defendant USOC, after arguing for the dismissal of all claims pursuant to Rule
12(b)(6), alternatively moved under Rule 12(f) to “strike both putative nationwide
classes as facially overbroad.”
[13]
(Doc. # 108 at 25.) The Injunction Class, it contended,
improperly encompasses all USOC-governed female athletes, “irrespective of their
sport.” (
Id.
) The Damages Class “would sweep in untimely claims against [Defendant]
USOC,” it continued, because it includes all females taekwondo athletes governed by
Defendant USOC since 2003. (
Id.
) And finally, Defendant USOC asserted that neither
the Injunction Class nor the Damages Class “is limited to athletes who suffered an
alleged injury—i.e., athletes who were allegedly abused by the Lopez brothers.” (
Id.
) It
encouraged this Court to follow other “Courts in this District” that “have stricken alleged
putative classes that, as here, include class members ‘regardless of whether they were
ever injured’ by the alleged conduct.” ( ) (quoting
Edwards v. Zenimax Media Inc.
,
a. Magistrate Judge Hegarty’s Recommendation
Magistrate Judge Hegarty recommended that Defendant USOC’s Motion to
Strike be denied as to the Injunction Class. (Doc. # 218 at 71.) He rejected Defendant
USOC’s argument that the Injunction Class is overbroad because it includes all USOC-
governed female athletes, not just those who compete in taekwondo; “this purported
defect,” he wrote, “does not warrant striking the allegations.” ( at 70.) Magistrate
Judge Hegarty explained that he relied on the Tenth Circuit’s opinion in
DG ex rel.
Stricklin v. Devaughn
,
Fed. R. Civ. P. 12(f).
[14] In Devaughn , the plaintiffs:
[S]ought certification of a class of all children who are or will be in the legal custody of [the Oklahoma Department of Human Services (“OKDHS”)] due to a report or suspicion of abuse or neglect or who are or will be adjudicated deprived due to abuse or neglect—approximately 10,000 children. Named Plaintiffs allege[d] # 218 at 69–70.) He observed that class members of the Injunction Class “are athletes who sought to compete for Team USA, and they allege [Defendant] USOC subjected them to an unreasonable risk of harm by coaches or athletes within the system.” ( Id. at 70.) “In accord with Devaughn ,” the Magistrate Judge found that the allegations concerning the Injunction Class “are appropriate.” ( Id. at 70–71.)
However, Magistrate Judge Hegarty recommended that the Court strike Plaintiffs’
proposed Damages Class as overly broad because the Damages Class is not limited to
athletes who allegedly suffered an injury. (
Id.
at 67–69.) He was persuaded by
Edwards
,
DG ex rel. Stricklin v. Devaughn
,
All class members, by virtue of being in OKDHS's foster care, are subject to the purportedly faulty monitoring policies of OKDHS, regardless of their individual differences; therefore, all members of the class are allegedly exposed to the same unreasonable risk of harm as a result of Defendants' unlawful practices. Though each class member may not have actually suffered abuse, neglect, or the risk of such harm, Defendants' conduct allegedly poses a risk of impermissible harm to all children in OKDHS custody.
Id.
the defendant that the proposed class was overbroad because it included members that never experienced the defect and members that sustained no injury, explaining:
I find that this definition is inadequate because it is overbroad and includes Colorado residents who presumably purchased [the video game] from anyone, anywhere, at any time regardless of whether he or she was ever injured by or even experienced the alleged Defect.
With respect to Plaintiffs’ argument that it was “premature to conclude that members of the alleged [Damages Class] have not experienced any injury” because such an determination “requires factual assessments that can’t be made at the 12(b)(6) stage” (Doc. # 139 at 63–64), Magistrate Judge Hegarty noted that Defendant USOC’s request to strike the class action allegations was brought pursuant to Rule 12(f), not Rule 12(b)(6) (Doc. # 218 at 69). Edwards , he stated, “demonstrates that it is proper for a court to strike class allegations when the proposed class definition is overbroad.” ( ) For these reasons, he recommended that Defendant USOC’s Motion to Strike be granted as to the Damages Class. ( )
b. Objections to the Recommendation and the Court’s Review No party objects to Magistrate Judge Hegarty’s conclusion that the Injunction Class is not overbroad and should not be stricken at this stage. Seeing no clear error in this portion of the Recommendation, the Court denies Defendant USOC’s request to strike Plaintiffs’ proposed Injunction Class.
As to the Damages Class however, Plaintiffs object to the Recommendation. (Doc. # 227 at 23.) They take issue with it to the extent that Magistrate Judge Hegarty “did not allow [them] the opportunity to replead to cure the statute of limitations defect he identified, despite pointing out in footnote 6 that the authorities he relied upon allowed an amendment.” ( ); see (Doc. # 218 at 60 n.6). Plaintiffs request that they “be permitted to reform the class definition because they can easily cure the technical defect on the limitations period by shortening the class period.” (Doc. # 227 at 23.)
The Court denies Plaintiffs’ request and affirms Magistrate Judge Hegarty’s analysis of the overbreadth of the proposed Damages Class. Plaintiffs do not challenge the merits of Magistrate Judge Hegarty’s assessment. See ( id. ) And their request to “reform the class definition,” as Defendant USOC states, “disregard[s] the broader problem identified by [Defendant] USOC and acknowledged in the Recommendation: the alleged [D]amages [C]lass includes putative class members who were not damaged, whether within or without the limitations period.” (Doc. # 232 at 8.) Shortening the class period would not fix that fundamental deficiency in their class allegation. The Court therefore strikes Plaintiffs’ proposed Damages Class pursuant to Rule 12(f).
IV. CONCLUSION
For the foregoing reasons, the Court ORDERS: 1. The March 6, 2019 Recommendation of United States Magistrate Judge Michael E. Hegarty (Doc. # 218) is AFFIRMED AND ADOPTED IN PART and REJECTED IN PART;
2. The Lopez Defendants’ Motion to Dismiss (Doc. # 106) is GRANTED IN PART and DENIED IN PART;
3. Defendant USOC’s Motion to Dismiss and Motion to Strike Class Action Allegations (Doc. # 108) is GRANTED IN PART and DENIED IN PART; 4. Defendant USAT’s Motion to Dismiss (Doc. # 109) is GRANTED IN PART and DENIED IN PART;
5. The following claims are DISMISSED:
a. Claim 14: All Plaintiffs’ claim of obstruction, attempted obstruction, and interference with enforcement, in violation of 18 U.S.C. §§ 1590(b), 1591(d), 1595(a), and 2255, against Defendant USOC; b. Claim 15: All Plaintiffs’ claim of violation of RICO, 18 U.S.C. § 1962(d), against all Defendants;
c. Claim 16: All Plaintiffs’ claim of negligent supervision against the Institutional Defendants;
d. Claim 17: All Plaintiffs’ claim of negligent retention against the Institutional Defendants;
e. Claim 19: All Plaintiffs’ claim of negligence against the Institutional Defendants and SafeSport;
f. Claim 20: All Plaintiffs’ claim of gross negligence against the Institutional Defendants and SafeSport; and
g. Claim 21: All Plaintiffs’ claim of outrageous conduct against Defendant USOC and SafeSport.
6. Plaintiffs’ proposed Damages Class is STRICKEN; 7. Defendant Jean Edwards is DISMISSED WITH PREJUDICE from this action; 8. The following claims survive Defendants’ Motions to Dismiss, to the extent that the alleged conduct took place within the applicable statute of limitations, as described above:
a. Claim 1: Plaintiff Meloon’s claim of forced labor, in violation of 18 U.S.C. §§ 1589(a), 1595(a), and 2255, against Defendant Steven Lopez; b. Claim 4: Plaintiff Joslin’s claim of forced labor, in violation of 18 U.S.C. §§ 1589(b) and 1595(a), against Defendant USAT; c. Claim 5: Plaintiff Joslin’s claim of trafficking with respect to forced labor, in violation of 18 U.S.C. §§ 1590(a) and 1595(a), against Defendant Steven Lopez and Defendant USAT;
d. Claim 8: Plaintiff Means’s claim of forced labor, in violation of 18 U.S.C. §§ 1589(a), 1595(a), and 2255, against Defendant Steven Lopez; e. Claim 9: Plaintiff Means’s claim of forced labor, in violation of 18 U.S.C. §§ 1589(b) and 1595(a), against the Institutional Defendants; f. Claim 10: Plaintiff Means’s claim of trafficking with respect to forced labor, in violation of 18 U.S.C. §§ 1590(a), 1595(a), and 2255, against Defendant Steven Lopez;
g. Claim 13: Plaintiff Means’s claim of sexual exploitation, transportation, and illegal sexual activity, in violation of 18 U.S.C. §§ 2242, 2421, 2422, 2423(a)–(c), and 2255, against Defendant Steven Lopez; h. Claim 14: All Plaintiffs’ claim of obstruction, attempted obstruction, and interference with enforcement, in violation of 18 U.S.C. §§ 1590(b), 1591(d), 1595(a), and 2255, against Defendant USAT.
DATED: September 27, 2019
BY THE COURT: _______________________________ CHRISTINE M. ARGUELLO United States District Judge
Notes
[1] Plaintiffs list “John Does 1–5” in the case caption but make no mention of any John Does in their Complaint. See generally (Doc. # 68.) The Court is unaware of the purpose, if any, of listing John Does 1–5 in the case caption.
[2] The Court observes that Plaintiff’s TVPA claims mostly arise under sections enacted in the Trafficking Victims Protection Reauthorization Act of 2003 (“TVPRA”), Pub. L. No. 108-193, 117 Stat. 2875 (2003) (codified in scattered sections of 8, 18, and 22 U.S.C.). The Court nevertheless refers to these claims as the TVPA claims.
[3] Plaintiff Means originally asserted Claim 8 against Defendant Jean Lopez too. (Doc. # 68 at 148.) She subsequently clarified that Claim 8 “is asserted only against Steven Lopez” and that Defendant Jean Lopez “was erroneously listed.” (Doc. # 139 at 3.)
[4] Plaintiffs originally asserted Claim 14 against the Lopez Defendants too. (Doc. # 168 at 156.) Plaintiffs later clarified that Claim 14 “is asserted against only the [I]nstitutional [D]efendants . . . not the Lopez [b]rothers.” (Doc. # 139 at 4.)
[5] Magistrate Judge Hegarty denied without prejudice Plaintiffs’ Conditional Motion for Time to Seek Leave to Amend Complaint (Doc. # 196) at the hearing on January 23, 2019. (Doc. # 203 at 2.)
[6] The Court also rejects the Lopez Defendants’ second contention, that Magistrate
Judge Hegarty’s “refusal to ‘follow’” the case upon which they relied in their Motion to
Dismiss,
Abarca v. Little
,
[7] Though Defendant USOC cited the Tenth Circuit recent decision in
Bistline
in its Objection,
Defendant USOC does not acknowledge the Tenth Circuit’s statement that the First Circuit
“persuasively applied” the definition of venture from Section 1591(e)(6) to a Section 1589(b)
claim.
See
(Doc. # 24 at 3, 5–6);
Bistline
,
[8] 18 U.S.C. § 2421(a) provides: (a) In general.--Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in 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 or imprisoned not more than 10 years, or both. 18 U.S.C. § 2421(a). Section 2422(a) provides: (a) Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in 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 or imprisoned not more than 20 years, or both. 18 U.S.C. § 2422(a). And Section 2423 provides, in relevant part: (a) Transportation with intent to engage in criminal sexual activity.--A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life. (b) Travel with intent to engage in illicit sexual conduct.--A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in
[9] Section 1590(b) provides: (b) Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties under subsection (a). 18 U.S.C. § 1590(b). Section 1590 generally concerns trafficking with respect to forced labor.
[10] Though the SAC states in the heading of Claim 14 that it asserts violation of 18 U.S.C. § 1591(d), there is no mention of Section 1591(d) in the text of the claim. (Doc. # 68 at 156– 58.) Section 1591(d) provides: (d) Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be fined under this title, imprisoned for a term not to exceed 25 years, or both. 18 U.S.C. § 1591(d). Section 1591 generally concerns sex trafficking of children by force, fraud, or coercion.
[11] Claim 15 specifically alleges violations of Section 18 U.S.C. §§ 1962(c) and (d). Section 1962(c) provides: (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. 18 U.S.C. § 1962(c). Section 1962(d), in turn, declares it “unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of [Section 1962].” 18 U.S.C. § 1962(d).
[12] Plaintiffs initially asserted this claim of outrageous conduct against Defendant USOC and SafeSport. (Doc. # 68 at 182–84.) Several of the SAC’s allegations of outrageous conduct are, to the best of this Court’s understanding, focused on SafeSport’s conduct. See ( id. at 183) (concerning SafeSport’s April 3, 2018 report about Defendant Jean Lopez and its subsequent appellate proceedings). As the Court noted above, Plaintiffs voluntarily dismissed SafeSport from this action on March 20, 2018. (Doc. # 223.)
[13] Federal Rule of Civil Procedure 12(f) provides: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or