United States District Court, M.D. Florida, Orlando Division
JOHNANTOON II, United States District Judge
Jane Doe and Florida Abolitionist bring this action against
Defendants Backpage.com LLC, EvilEmpire.com, BigCity.com,
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
alleged in the Complaint, Defendant Backpage.com LLC owns and
operates the website that does business as Backpage.com, and
Defendants EvilEmpire.com and BigCity.com are websites whose
content, services, and features are controlled by
Backpage.com LLC. (Compl., Doc. 1, ¶¶ 11-13).
Defendant Carl Ferrer is the CEO of Backpage.com LLC, and
Defendants Michael Lacey and James Larkin are owners of
Backpage.com LLC. Id. ¶¶ 14-16).
Defendants operate an online classified advertising service
on Backpage.com, 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."
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. ¶
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 (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
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.
Standing (Rule 12(b)(1))
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).
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. The Court disagrees.
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 Backpage.com 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 Backpage.com. 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
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.
Plaintiffs have sufficiently alleged standing.
Defendants' motion to dismiss is denied insofar as it
asserts lack of subject-matter jurisdiction under Rule
Failure to State a ...