M.A., et al., Plaintiffs, v. WYNDHAM HOTELS & RESORTS, INC., et al., Defendants.
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
JUDGE ALGENON L. MARBLEY; Magistrate Judge Deavers
October 7, 2019
This matter is before the Court on Defendants‘, Buckeye Hospitality, Inc., First Hotel Management, LLC, Columbus Hospitality, LLC, Krrish Lodging, LLC, Wyndham Hotels and Resorts, Inc., and Choice Hotels International, Inc., Motions to Dismiss. (ECF Nos. 39, 40, 42, 43, 52, 53). For the following reasons, Defendants’ Motions are hereby DENIED.
I. BACKGROUND
Plaintiff, M.A., was trafficked for sex from “the spring of 2014 until August 2015.” (ECF No. 1 at ¶ 51). She alleges that this trafficking took place at several Days Inn by Wyndham, Comfort Inn, and Crowne Plaza locations in Columbus. (Id.). Plaintiff now seeks to hold these hotels liable under the Trafficking Victims Protection Reauthorization Act (“TVPRA“),
Plaintiff alleges that these hotel Defendants knew or should have known M.A.‘s trafficking was happening on their properties. Plaintiff points to behavior that she alleges hotel staff should have recognized as signs of her trafficking: her trafficker asked for rooms near exits, “the trash cans in the rooms in which M.A. was trafficked would contain an extraordinary number of used condoms,” and M.A. was told to decline housekeeping, the rooms “were frequently paid for with cash.” (ECF No. 1 at ¶ 52). M.A. asserts other “obvious signs of human trafficking” including “physical deterioration, no eye contact, and duration of stay” and “bottles of lubricants, boxes of condoms, used condoms in the trash, excessive requests for towels and linens, [and] cash payments.” (ECF No. 1 at ¶ 53). Plaintiff alleges that, while she was at each hotel property, “the hotel staff would have or should have observed visible physical changes, such as bruising,” (ECF No. 1 at ¶ 54) and that “[d]espite her desperate pleas and screams for help, after being beaten or choked at the Defendants’ hotel properties, the hotel staff ignored her and did nothing to prevent the ongoing and obvious torture she endured.” (ECF No. 1 at ¶ 55). Plaintiff finally escaped in August of 2015, and her trafficker has been sentenced. M.A. alleges that these hotel brands—Wyndham, Choice Hotels, and IHG did not take adequate measures to prevent human trafficking.
II. STANDARD OF REVIEW
The Court may dismiss a cause of action under
III. LAW & ANALYSIS
M.A. has sued under the Trafficking Victims Protection Reauthorization Act (“TVPRA“). The TVPRA has two provisions relevant to this case. First, the TVPRA provides for criminal penalties set forth in
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce, . . . recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or
(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),
knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).
An individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.
As a threshold matter, this Court addresses Defendant Krrish‘s argument that
B. Civil Liability Under the TVPRA § 1595
The requirements for liability under
1. Knowing benefit
This Court begins with an analysis of whether M.A. has sufficiently alleged that Defendants “knowingly benefited” financially from the venture. Defendants have disputed that merely receiving revenue from the rental of a hotel room can constitute a benefit. Krrish, specifically, alleges that the proper standard for “benefit” is the standard articulated in Geiss v. The Weinstein Company Holdings, LLC, et al., Case No. 1:17-cv-09554-AKH, 2019 WL 1746009 (S.D.N.Y. Apr. 18, 2019). (ECF No. 43 at 12). That is, Plaintiff must show that the trafficker “provided any of those benefits to [Defendants] because of [Defendants‘] facilitation of [the trafficker‘s] sexual misconduct.” Geiss, 2019 WL 1746009, at *8.
Other cases have not required such a specific definition of “benefit.” For example, in Gilbert v. United States Olympic Committee, No. 18-cv-00981-CMA-MEH, 2019 WL 4727636 (D. Colo. Sept. 27, 2019), the District Court of Colorado interpreted
M.A. has alleged that Defendants rented rooms to the trafficker, and therefore benefited financially. This Court finds that the rental of a room constitutes a financial benefit from a relationship with the trafficker sufficient to meet this element of the
2. Knew or should have known the venture was engaged in trafficking
A defendant cannot be liable under
Throughout the Complaint Plaintiff uses the phrase “willful blindness” to describe Defendants’ conduct and contains some allegations that Defendants “knew” about the sex trafficking venture. Willful blindness is a higher standard, akin to actual knowledge. See Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011). As the Supreme Court has stated, willful blindness has “two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.” Id. at 769. See also United States v. Reichert, 747 F.3d 445, 452 (6th Cir. 2014) (willful blindness is “a defendant‘s conscious decision to remain ignorant of the illegality of his conduct even when the defendant is aware of a high probability that his conduct is in fact illegal.“).
However, this Court rejects Defendants’ argument that M.A. relies solely on a theory of actual knowledge. M.A. brings a claim under
M.A.‘s allegations do not rise to the level of obviousness present in Ricchio. M.A.‘s facts do not suggest a direct agreement between her trafficker and any of the hotel defendants. M.A. does not allege that a specific hotel staff member saw her in a deteriorated state. But M.A. does not need to prove reckless disregard under
On the other end of the spectrum is Hillary Lawson v. Howard Rubin, No. 1:17-cv-6404 (BMC), 2018 WL 2012869 (E.D.N.Y. Apr. 29, 2018). There, the plaintiffs sued Blue Icarus, the owner of a condo that it leased to Howard Rubin. Rubin, as it turned out, was procuring women who he then sexually assaulted and abused. The court found the plaintiff‘s allegations insufficient to hold Blue Icarus liable under
First, plaintiffs have not cited any caselaw to support their argument that one visit by the police department and one ambulance sent to the residence over six years is sufficient to put the owner of the premises on notice of illegal activity. (Indeed, plaintiffs do not cite any cases at all for the standard for a property owner‘s duty to monitor the premises.). Plaintiffs did not claim that Blue Icarus had actual notice of the alleged activity, only that it should have known about alleged trafficking based on its duty to monitor the premises….
The only instance of polic[e] being called to the penthouse described in the amended complaint was when Cacciola called them after getting into a fight with Hallman. Assuming the facts in the complaint to be true and even assuming that Blue Icarus had a duty to investigate any time the police were called, there would not have been any reason for it to infer illegal conduct by Rubin or his employees based on why the police were called. In the only two instances of an ambulance or the police being called to the penthouse, any investigation by Blue Icarus would not have led to any more information about the alleged human-trafficking enterprise.
Lawson v. Rubin, 2018 WL 2012869, at **13–14.
Plaintiff‘s claims in this case fall somewhere between Ricchio and Lawson. Plaintiff has alleged, as to the individual
- The “trafficker often requested rooms near exit doors. Frequently the trash cans in the rooms in which M.A. was trafficked would contain an extraordinary number of used condoms. The trafficker routinely instructed M.A. to refuse housekeeping services. The hotel rooms in which M.A. was trafficked were frequently paid for with cash.” (ECF No. 1 at ¶ 52).
- The hotels “failed to recognize or report Plaintiff M.A.s trafficking.” (ECF No. 1 at ¶ 53).
- “The Plaintiff observed some of the same hotel staff over the course of the time she was trafficked for sex at the Defendant hotel properties.” (ECF No. 1 at ¶ 54).
- “At each of the Defendants’ hotel properties, M.A. was routinely escorted by her trafficker in view of the front desk after her trafficker paid in cash for the reserved room out of which the sex trafficking venture was housed.” (ECF No. 1 at ¶ 54).
- “Despite her desperate pleas and screams for help, after being beaten or choked at the Defendants’ hotel properties, the hotel staff ignored her and did nothing to prevent the ongoing and obvious torture she endured while she was regularly trafficked for sex at Defendants’ hotel properties.” (ECF No. 1 at ¶ 55).
- “The Plaintiff‘s trafficker operated the sex trafficking venture out of the same hotel room for multiple days or weeks in succession.” (ECF No. 1 at ¶ 56).
- “The Plaintiff was forced into sexual encounters with approximately ten (10) “johns” per day, and these johns would enter and leave the hotel guest room.” (ECF No. 1 at ¶ 56).
In addition to the above allegations, M.A. has alleged, generally against each defendant hotel chain that the chains “knew or should have known” that its Defendant hotel locations were in “an area known for sex trafficking activity.” (ECF No. 1 at ¶¶ 64, 74). To support this allegation against the Wyndham Defendants, M.A. has cited to various news articles but none of the articles appear to be involving Columbus Wyndham locations.1
M.A.‘s allegations against Choice are the most detailed. She cites an online review of a Columbus-area Quality Inn that alleges the review was “solicited for drugs and by prostitutes” and the reviewer “told the hotel staff about it and they seem to turn a blind eye to the problem because these people are also buying rooms.” (ECF No. 1 at ¶ 87 n.24). M.A. also alleges Choice Hotels “breached its duties and did not implement or enforce anti human trafficking policies that could have saved the Plaintiff from being sex trafficked at its branded hotels,” (ECF No. 1 at ¶ 91), and “despite knowledge of the problem of sex trafficking in its hotels, Defendant Choice did not require that employees participate in training to prevent sex trafficking,” (ECF No. 1 at ¶ 92).
This Court must decide whether these allegations are sufficient to state a claim that Defendants knew or should have known the venture was engaged in sex
The question, then, is whether Plaintiff has alleged sufficient facts at this stage to show Defendants should have known about the sex trafficking venture. Several courts have found failure to implement policies sufficient to combat a known problem in one‘s operations can rise to the level of willful blindness or negligence. See Brown v. Corr. Corp. of Am., 603 F.Supp.2d 73, 81 (D.D.C. Mar. 26, 2009) (finding that complaint stated sufficient allegations under
3. Participation in a venture
Finally, the Court must decide whether Plaintiff alleged sufficient facts that show Defendants’ conduct constituted “participation in venture” under
The Defendants rely extensively on United States v. Afyare, 632 F. App‘x 272 (6th Cir. 2016), which addresses the meaning of “participation in a venture” under
Plaintiff, M.A., argues that the Sixth Circuit‘s construction of “participation in a venture” under
In construing a statute, this Court “start[s], as [it] must, with the language of the statute.” Bailey v. United States, 516 U.S. 137, 145 (1995). But even a textual analysis is informed “not only [by] the bare meaning of the word but also [by] its placement and purpose in the statutory scheme.” Id. Where, as here, a statute is “remedial,” it “should be liberally construed.” Peyton v. Rowe, 391 U.S. 54, 65 (1968). See also Noble v. Weinstein, 335 F.Supp.3d 504, 515 (S.D.N.Y. 2018) (finding that
Some Defendants have relied on the definition of “participation in a venture” supplied in
In addition to the language in
At least one other court has likewise found that liability under
Having found that “participation” under
Defendants have also relied on Ricchio to argue that the Defendants’ alleged conduct here cannot, as a matter of law, form the basis for “participation in a venture” for purposes of civil liability under
McLean physically and sexually abused Ricchio, repeatedly raping her, starving and drugging her, and leaving her visibly haggard and bruised. . . . McLean had prior commercial dealings with the Patels, which the parties wished to reinstate for profit. McLean and Mr. Patel enthusiastically expressed this intent by exchanging high-fives in the motel‘s parking lot while speaking about “getting this thing going again,” in circumstances
in which McLean‘s coercive and abusive treatment of Ricchio as a sex slave had become apparent to the Patels. Ms. Patel had not only nonchalantly ignored Ricchio‘s plea for help in escaping from McLean‘s custody at the motel but, when visiting the rented quarters to demand further payment, had shown indifference to Ricchio‘s obvious physical deterioration. And in plain daylight view of the front office of the motel, either of the Patels on duty there would have seen McLean grab Ricchio, kick her, and force her back toward the rented quarters when she had tried to escape. In these circumstances, it was a plausible understanding that McLean was forcing sex in the motel room where he held Ricchio hostage, and fairly inferable that the gainful business that Mr. Patel and McLean spoke of had been and would be in supplying sexual gratification. It is likewise inferable that the Patels understood that in receiving money as rent for the quarters where McLean was mistreating Ricchio, they were associating with him in an effort to force Ricchio to serve their business objective.
Ricchio, 853 F.3d at 555. The First Circuit explained that it did not present that “summary [of the facts] as necessarily exhausting every variant of statutory violation and basis for civil liability that could survive the general
Plaintiff argues that “Defendants . . . directly participated in the sex trafficking venture by harboring it.” (ECF No. 66 at 18). Defendants need not have actual knowledge of the sex trafficking in order to have participated in the sex trafficking venture for civil liability under the TVPRA, otherwise the “should have known” language in
B. Joint and Several Liability
Defendants Choice Hotels, International and First Hotel Management have argued that Plaintiff‘s request that all Defendants be held jointly and severally liable is improper because they cannot be “responsible for acts occurring on properties not owned or managed by them.” (ECF No. 40 at 15). Plaintiff has not addressed this argument. Therefore, this Court will consider Plaintiff to have conceded the point.
C. Vicarious Liability
Choice Hotels argues that Plaintiff‘s allegations are insufficient to support a claim of an agency relationship between Choice and its individual hotel locations. (ECF No. 53 at 6–7). Alternatively, Choice Hotels has argued that, even if an agency relationship exists, the TVPRA does not contemplate liability based on an agency relationship between Choice Hotels and its individual hotel locations. (ECF No. 53 at 6–7). Choice Hotels and Wyndham also argue that the TVPRA does not provide for a plaintiff to hold a franchisor liable as a single or joint employer with its franchisee. (ECF No. 53 at 9); (ECF No. 52 at 2).
1. Agency and Vicarious Liability
It is a long-standing principle of law in Ohio that “[a] principal is chargeable with the knowledge of, or notice to, his agent that is received by the agent in the due course of the agent‘s employment and is related to the matters within the agent‘s authority.” Liggett v. Chesapeake Energy Corp., 591 F. App‘x 305, 309 (6th Cir. 2014). In determining whether there is an agency relationship, the question is how much the agent “retained control, or the right to control, the mode and manner of
2. Single or Joint Employer Status
Similar to the agency relationship inquiry, whether two employers are a joint employer often turns on how much control one exercises over the other. See, e.g., Int‘l Longshoremen‘s Ass‘n, AFL-CIO, Local Union No. 1937 v. Norfolk Southern Corp., 927 F.2d 900, 902 (6th Cir. 1991) (quoting Metropolitan Detroit Bricklayers Dist. Council v. J.E. Hoetger & Co., 672 F.2d 580, 584 (6th Cir. 1982)) (articulating test for joint employer status under the NLRA as “the interrelation of operations between the companies, common management, centralized control of labor relations, and common ownership.“); Sanford v. Main Street Baptist Church Manor, Inc., 327 F. App‘x 587, 594 (6th Cir. 2009) (quoting United States EEOC v. Custom Companies, Case Nos. 02 C 3768, 03 C 2293, 2007 WL 734395, at *5–8, 2007 U.S. Dist. LEXIS 16691, at *15–24 (N.D.Ill. March 8, 2007)) (adopting the test for Title VII joint employer status: “(1) the extent of the employer‘s control and supervision over the worker, including directions on scheduling and performance of work; (2) the kind of occupation and nature of skill required, including whether skills are obtained in the work place; (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations; (4) method and form of payment and benefits; and (5) length of job commitment and/or expectations.“). As Choice Hotels noted, the Sixth Circuit has recognized the employer control theory and the agency theory are “essentially the same.” Satterfield v. Tennessee, 295 F.3d 611, 618 n.6 (6th Cir. 2002). Although M.A. has not alleged additional facts specific to the joint employer allegation, her facts supporting an agency relationship could plausibly show some element of control to establish joint employer status. Therefore, her allegations meet the pleading standard for the same reasons as above.
D. Group Pleading
Defendant Wyndham Hotels & Resorts, Inc. argues that the Complaint impermissibly alleges facts against “Defendants” generally, without specifying which Defendant took which actions. (ECF No. 52 at 4). M.A. argues that much of the case law Wyndham relies on with respect to “group” allegations pertain to the specialized fraud and
M.A. has pleaded sufficient facts particular to Wyndham to meet the
E. Failure to Join
Defendant First Hotel Management argues that Plaintiff‘s Complaint is deficient for failure to join a necessary party under
In determining whether a party should be joined under
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motions to Dismiss are hereby DENIED.
IT IS SO ORDERED.
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATE: October 7, 2019