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Florida Abolitionist v. Backpage.Com LLC

United States District Court, M.D. Florida, Orlando Division

March 31, 2018



          JOHNANTOON II, United States District Judge

         Plaintiffs Jane Doe and Florida Abolitionist bring this action against Defendants LLC,,, Carl Ferrer, Michael Lacey, and James Larkin, alleging six claims under Florida law and one claim under 18 U.S.C. § 1595, which provides a federal civil remedy for sex trafficking victims. Before the Court is Defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (Doc. 42), Plaintiffs' Opposition (Doc. 52), and Defendants' Reply (Doc. 58). As set forth below, Defendants' motion is granted in part and denied in part, and Plaintiffs will be allowed to replead their claims.

         I. Background

         As alleged in the Complaint, Defendant LLC owns and operates the website that does business as, and Defendants and are websites whose content, services, and features are controlled by LLC. (Compl., Doc. 1, ¶¶ 11-13). Defendant Carl Ferrer is the CEO of LLC, and Defendants Michael Lacey and James Larkin are owners of LLC. Id. ¶¶ 14-16). Defendants operate an online classified advertising service on, and during the time period at issue in this case advertisements could be placed on the website in categories including "Adult Services"-such as escort services-and "Dating."[1]

         Plaintiff Jane Doe "was trafficked on Backpage in ... 2013 and repeatedly raped as a result of the advertisement placed on Backpage." (Id. ¶ 18). She was twenty-six years old at that time. (See id. ¶ 100 (stating that in 2017 Plaintiff Doe was thirty years old)). Plaintiff Florida Abolitionist is a non-profit 501(c)(3) organization "whose mission is to end human trafficking, " (id. ¶ 17), and which provides services to trafficking victims, (id. ¶ 111). Florida Abolitionist estimates that at least half of the victims it serves were trafficked via Backpage. (Id. ¶ 114).

         The Complaint alleges seven counts, each of which is against all Defendants-four brought solely by Doe and three brought by both Plaintiffs. Doe alone brings claims of sex trafficking under 18 U.S.C. § 1595[2] (Count I), "distributor or publisher liability" (defamation) (Count II), common law invasion of privacy or right to publicity (Count IV), and violation of Section 540.08, Florida Statutes (commercial exploitation of a person's name or personality) (Count V). Both Doe and Florida Abolitionist bring claims of outrage (Count III), civil conspiracy (Count VI), and negligence (Count VII).

         In their motion to dismiss, Defendants assert that Plaintiffs lack standing to bring their claims and that therefore the case should be dismissed for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Defendants also argue that 47 U.S.C. § 230-part of the Communications Decency Act of 1996-bars Plaintiffs' claims. And Defendants contend that even aside from § 230, Plaintiffs' claims should be dismissed for failure to state a claim on which relief can be granted. Plaintiffs oppose all of Defendants' arguments and request leave to amend their complaint in the event the Court finds any of their claims deficiently pleaded.

         II. Standing (Rule 12(b)(1))[3]

         Federal courts are courts of limited jurisdiction, and "Article III [of the U.S. Constitution] restricts the jurisdiction of federal courts to litigants who have standing to sue." Nicklaw v. CitiMortgage, Inc., 839 F.3d 998, 1001 (11th Cir. 2016). "Article III standing .. . enforces the Constitution's case-or-controversy requirement. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004), abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1277 (2014).

         "To have standing under Article III, a plaintiff 'must have suffered or be imminently threatened with a concrete and particularized "injury in fact" that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.'" Wollschlaeger v. Governor of Fla., 848 F.3d 1293, 1303-04 (11th Cir. 2017) (quoting Lexmark, 134 S.Ct. at 1386). Defendants argue that Plaintiffs lack standing because they have not sufficiently alleged a causal connection between their injuries and Defendants' actions.[4] The Court disagrees.

         As noted above, in order for Plaintiffs to have standing their injuries must be "fairly traceable" to the actions of the Defendants. "'At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice' to establish standing." Resnick v. AvMed, Inc., 693 F.3d 1317, 1323 (11th Cir. 2012) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). And "[e]ven a showing that a plaintiff's injury is indirectly caused by a defendant's actions satisfies the fairly traceable requirement." Id. at 1324; see also Wollschlaeger, 848 F.3d at 1304 ("'Proximate causation, ' however, 'is not a requirement of Article III standing[.]"' (alteration in original) (quoting Lexmark, 134 S.Ct. at 1391 n.6)). Plaintiff Doe alleges that after an advertisement offering her for sexual services was posted on on March 30, 2013, she was raped and sold at least five times in a period of twelve hours. (Compl. ¶ 9). She alleges in each count that she suffered physical and psychological injuries based on the posting of the advertisement on This is sufficient to satisfy the "fairly traceable" requirement for Article III standing at this stage of the case as to each of Plaintiff Doe's claims. Defendants' assertions as to the insufficiency of Doe's pleading of causation bear on whether she has stated causes of action under Rule 12(b)(6) rather than on whether she has standing to bring these claims against Defendants in the first instance. Ct Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) ("[T]he absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts' statutory or constitutional power to adjudicate the case." (emphasis removed)).

         The Complaint also sufficiently alleges that Plaintiff Florida Abolitionist has standing to bring its claims. "An organization suing on its own behalf can establish an injury when it suffered 'both a diversion of its resources and a frustration of its mission.'" La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010) (quoting Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)); accord Arcia v. Fla. Sec'y of State, 772 F.3d 1335, 1341 (11th Cir. 2014) ("[A]n organization has standing to sue when a defendant's illegal acts impair the organization's ability to engage in its own projects by forcing the organization to divert resources in response." (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982))). The Complaint alleges that Defendants' conduct with regard to the advertisements posted on the websites has led to an increase in sex trafficking, which has required Florida Abolitionist to divert its resources to treatment of victims rather than to its mission of ending human trafficking. (Compl. ¶¶ 10 & 114). The Complaint further alleges that "Florida Abolitionist estimates that at least half of the victims it serves were trafficked via Backpage." (Id. ¶ 114). These are sufficient allegations of an injury "fairly traceable" to the actions of Defendants to support Florida Abolitionist's standing on each of its claims at this stage of the case.

         In sum, Plaintiffs have sufficiently alleged standing. Defendants' motion to dismiss is denied insofar as it asserts lack of subject-matter jurisdiction under Rule 12(b)(1).

         III. Failure to State a ...

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