United States District Court, D. Colorado
HEIDI GILBERT, AMBER MEANS, MANDY MELOON, GABRIELA JOSLIN, KAY POE, and JANE DOES 6-50, Plaintiffs,
UNITED STATES OLYMPIC COMMITTEE, USA TAEKWONDO, INC., U.S. CENTER FOR SAFESPORT, STEVEN LOPEZ, JEAN LOPEZ, and JOHN DOES 1-5, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge
assert twenty-one claims against the various Defendants.
See Second Amended Complaint, ECF No. 68
(“SAC”). Defendants United States Olympic
Committee (“USOC”), USA Taekwondo, Inc.
(“USAT”), and Jean and Steven Lopez
(collectively, the “Lopez Defendants”) have filed
separate Motions to Dismiss seeking to dismiss the claims in
their entirety. Additionally, the USOC moves under
Fed.R.Civ.P. 12(f) to strike Plaintiffs' class action
allegations. As set forth below, I respectfully
recommend that all motions be granted in
part and denied in part.
in this lawsuit are female taekwondo athletes who sought to
compete for Team USA. Plaintiffs allege that during the time
they participated and competed in the USAT system, they were
sexually abused, assaulted, and raped by the Lopez
Defendants, who Plaintiffs claim are prominent members of the
United States taekwondo community. Plaintiffs'
allegations in this lawsuit constitute three components.
First, Plaintiffs allege coerced sexual conduct and sexual
assault perpetrated by the Lopez Defendants. Second,
Plaintiffs allege the USOC and USAT ignored and discredited
their reports of such conduct in the years following the
assaults. Finally, Plaintiffs allege that executives of the
USOC and USAT lied to Congress in an attempt to divert blame
and prevent institutional reform. In the interests of
judicial economy and efficiency, many allegations from the
200-page SAC are omitted or significantly condensed in the
following background section. Where those facts become
relevant to resolution of the present motions, I discuss them
at the appropriate juncture. Plaintiffs factual allegations
are taken as true for analysis under Fed.R.Civ.P. 12(b)(6)
pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678
USOC is the federally chartered institution that exercises
“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). The USOC's
jurisdiction includes the responsibility to “organize,
finance, and control the representation of the United States
in the competitions and events of the Olympic Games . . .
.” § 220505(c)(3). Congress also empowered the
USOC to “recognize eligible amateur sports
organizations as national governing bodies
[(“NGBs”)] for any sport that is included on the
program of the Olympic Games . . . .” §
USAT is the NGB recognized by the USOC to govern the United
States' participation in taekwondo. See SAC
¶ 98. Thus, USAT has the responsibility to select the
athletes, officials, and coaches who will represent the
United States in taekwondo in Olympic competitions. See
Id. ¶ 95. Defendant Jean Lopez was the head coach
of the USAT team at the 2004, 2008, 2012, and 2016 Olympics.
Id. ¶ 139. Jean's brother, Defendant Steven
Lopez, is a well-known athlete on the taekwondo team who won
gold medals at the 2000 and 2004 games and a bronze medal in
2008. Id. ¶ 24. The two are part of a family
that carries the moniker the “first family” of
taekwondo. See Id. ¶¶ 23-25.
allege that during the time they participated in the USAT
system, they were victims of sexual abuse, assault, and rape
by Jean and Steven Lopez and by other members of the
taekwondo community who are not defendants here. See
Id. ¶¶ 362-722.
Plaintiffs' Allegations of Sexual Assault
Meloon was born in Germany in 1981. Id. ¶ 362.
At the age of thirteen, she moved to the Olympic training
center in Colorado Springs to train full-time in taekwondo.
Id. ¶¶ 363- 67. Soon after moving to the
center, she was befriended by Jean Lopez. Id.
¶¶ 368-69. Ms. Meloon asserts that Jean Lopez
engaged in sexual conversations with her and referred to her
as his girlfriend. Id. ¶ 370. She alleges that
Danny Kim, an adult member of the taekwondo national team,
raped Ms. Meloon in her room at the training center in 1996.
Id. ¶ 391. For approximately another year,
while Ms. Meloon was still living at the training center, Mr.
Kim continued to have sex with Ms. Meloon. See Id.
¶¶ 392-97. Ms. Meloon made oral complaints about
Mr. Kim in 1997 and a written complaint in 2006. Id.
1995, at the age of fourteen, Ms. Meloon made the USAT senior
national team. Id. ¶ 375. She was still on that
team in 1997 when it traveled to Cairo, Egypt, to compete in
the World Cup. Id. ¶¶ 399-402. During the
trip, Ms. Meloon shared a hotel room with Plaintiff Kay Poe.
Id. ¶ 402. Ms. Meloon claims that, one night
while both girls were asleep, Jean Lopez entered the
girls' room, climbed into Ms. Meloon's bed, and
digitally penetrated her vagina for approximately five
minutes. Id. ¶¶ 404-07. Ms. Meloon
pretended she was asleep during this assault. Id.
Meloon left the Olympic training center in 1998 and soon
thereafter moved to Texas to train at Jean Lopez's gym.
Id. ¶ 421. In 2000, when Ms. Meloon was
eighteen, she began to have a sexual relationship with Steven
Lopez. Id. ¶ 422. Ms. Meloon asserts that
Steven soon became physically abusive. Id. ¶
426. In 2002, he allegedly punched Ms. Meloon in the face.
Id. ¶ 427. USOC and USAT officials “were
aware” of this. Id. ¶ 428. Ms. Meloon
also alleges that in 2004, Steven broke into her house, beat
and raped her, then beat and raped her again in 2005.
Id. ¶¶ 429-30. Later that year, at the
World Championships in Madrid, Spain, Steven purportedly
physically assaulted Ms. Meloon in their hotel, breaking her
ribs. Id. ¶ 431. Ms. Meloon claims that,
because she began to see other men after the Madrid incident,
Coach Jean Lopez dropped Ms. Meloon from the national team.
Id. ¶¶ 433-34.
1996, at the age of fourteen, Ms. Poe became the
youngest-ever member of the United States national taekwondo
team. Id. ¶ 487. By 1997, Ms. Poe was having a
sexual relationship with a twenty-two-year-old member of the
team; the USOC allegedly had knowledge of this sexual
relationship. Id. ¶¶ 491-93. Ms. Poe
asserts that Jean Lopez “forced a sexual
relationship” with her “while she was still a
minor.” Id. ¶ 497. She also contends
that, by 1999 when Ms. Poe was seventeen years old, Jean was
having full sexual intercourse with her. Id.
¶¶ 498-502. This sexual relationship continued
through the 2000 Olympic games in Sydney, when she was a
competitor on the team and Jean was the coach. Id.
¶ 507. Ms. Poe asserts she was able to stop Jean from
forcing sex on her shortly after those games. Id.
¶ 508. But at the 2002 U.S. Open, Ms. Poe alleges Jean
followed her to her hotel room and “dry humped”
her until he ejaculated in his pants. Id.
¶¶ 508-09. Ms. Poe left the sport of taekwondo
after she failed to make the 2008 Olympic team. Id.
Gilbert was a member of the USAT team at the 2002 Pan-Am
Championships in Ecuador. Id. ¶ 523. She
alleges that one night, while she was celebrating with Diana
Lopez (the Lopez Defendants' sister) in Jean's hotel
room, Jean entered the room and wrestled Ms. Gilbert onto the
bed. Jean pinned her down and “dry humped” her
until he ejaculated in his pants. Id. ¶¶
528-34. A year later, after a competition in Germany, Ms.
Gilbert and Jean (among others) attended a party.
Id. ¶ 542. Ms. Gilbert claims that Jean was
sexually aggressive with her by initiating physical contact
and eventually gave her a drink that had been drugged.
Id. ¶¶ 543-44. The drink caused her to
“almost pass out, ” and she felt she could not
move. Id. ¶¶ 545-46. She contends that
Jean put her in a taxi, where he felt her breasts and vagina
over her clothes. Id. ¶ 547. Ms. Gilbert also
alleges that, when they reached the hotel, Jean dragged her
to the back of a lobby area and digitally penetrated her and
performed oral sex on her. Id. ¶¶ 548-51.
Joslin was born on March 14, 1983, and grew up in Texas.
Pls.' Statement Non-Opp'n to Def. Jean & Steven
Lopez's Req. Judicial Notice 2, ECF No. 122; SAC ¶
602. She had known the Lopez brothers since she was a young
child. SAC ¶ 603. Jean Lopez became her taekwondo coach
in 2006. Id. ¶ 605. That same year, Ms. Joslin
planned to compete in the German Open to gain experience to
compete for the Olympic team but, at the last minute, Jean
informed her that he would not travel to the competition.
Id. ¶¶ 606-10. However, Steven Lopez was
attending the event as a USAT athlete and coach and offered
to serve as Ms. Joslin's coach. Id. ¶¶
night before Ms. Joslin's first match, Steven went to her
hotel room and said he wanted to discuss her upcoming match.
Id. ¶ 616. Ms. Joslin asserts that, once in the
room, Steven turned on the television and changed the channel
to a pornographic movie. Id. ¶ 617. He then
grabbed Ms. Joslin, pinned her to the bed, and began rubbing
her buttocks. Id. ¶¶ 618-19. Ms. Joslin
states, “[i]t was clear to [her] that Steven required
sex before he would address his responsibilities as
coach.” Id. ¶ 620. The two then had sex,
and Ms. Joslin continued to allow Steven to have sex with her
for the remainder of her taekwondo career. Id.
¶¶ 621-22. She last had sex with Steven in 2010.
Id. ¶ 624. She states she did this out of fear
of Jean Lopez, who she alleges “made it clear . . . she
was to cater to Steven.” Id. ¶ 622
retiring as an athlete, Ms. Joslin began a career in Texas as
a taekwondo coach. Id. ¶ 625. Around the same
time, “Jean Lopez began a sexual relationship with
her.” Id. ¶ 626. Ms. Joslin alleges that
in late 2011, Jean violently raped her. Id. ¶
630. She contends that she became pregnant by the rape and
had an abortion. Id. ¶ 631.
Means was born on May 7, 1990, and grew up in Spokane,
Washington. Pls.' Statement Non-Opp'n to Def. Jean
& Steven Lopez's Req. Judicial Notice 2; SAC ¶
655. She first met the Lopez Defendants at a taekwondo camp
in Houston in 2003. SAC ¶ 656. After the camp, Jean
Lopez told Ms. Means' parents she had tremendous
potential in taekwondo. Id. ¶ 661. By 2004,
Jean persuaded the Meanses to move to Texas so Amber could
train at the Lopez' taekwondo studio. Id. ¶
662. In 2007, when Ms. Means was 17, she and Steven Lopez
began going on dates. Id. ¶ 675. Steven first
kissed her after the two saw a movie that year. Id.
¶ 767. Ms. Means asserts that by 2008, when she was
still seventeen, the two had started a sexual relationship,
which they continued at competitions throughout 2008.
Id. ¶¶ 685, 688. She alleges that in June
2008, Steven drugged and raped her at a private party.
Id. ¶¶ 691-95.
Reports of Sexual Assault
Ms. Meloon and Ms. Gilbert allege they reported their
allegations of sexual assault by Jean Lopez in approximately
2006 to 2008. Ms. Meloon alleges she personally handed her
written complaint to executives at the USOC and USAT,
including David Askinas, Chief Executive Officer
(“CEO”) at USAT. Id. ¶¶
189-91. She claims that Mr. Askinas later called Ms.
Meloon's report of rape a
“mischaracterization.” Id. ¶ 187.
2006, Ms. Gilbert received a call from Mr. Askinas, asking
whether she intended to file a complaint against Jean for his
alleged rape in 2003. Id. ¶ 195. In 2008, Mr.
Askinas allegedly told Ms. Meloon she could have a spot on
the Olympic team, but she would have to withdraw her
complaint against Jean and “sign a statement confessing
that she was mentally ill and had fabricated her allegations
. . . .” Id. ¶ 200. Ms. Meloon declined
to retract her statement. Id. ¶ 201.
March 2015, USAT hired Donald Alperstein specifically to
investigate allegations about the Lopez Defendants.
Id. ¶ 269. USAT declared that Mr. Alperstein
had “unfettered ability to carry out his task, ”
and that any evidence he uncovered would be submitted to law
enforcement agencies. Id. ¶ 219. However,
Plaintiffs allege that the “USOC and USAT secretly
worked together, behind closed doors, to make sure that the
investigation against the Lopez brothers was delayed and
obstructed, ” because the organizations wanted them to
participate and compete in the 2016 Olympics. Id.
¶¶ 225-26. After the games concluded, Mr.
Alperstein sent Ms. Gilbert an email stating, “Now that
the Olympics are over and things are settling down, I want to
get moving again on the Steven Lopez disciplinary
case[.]” Id. ¶ 235 (alteration in
USOC's and USAT's Testimony before Congress
also allege that executives at the USOC and USAT have
recently testified falsely before Congress. Plaintiffs allege
Scott Blackmun, former USOC CEO, falsely testified that some
NGBs have bigger budgets than the USOC, and he inaccurately
stated the percentage of USOC's budget that is spent on
overhead. Id. ¶ 171. Plaintiffs also allege
Steve McNally, USAT Executive Director, testified before the
Oversight and Investigations Subcommittee that Mr. Alperstein
“operated without any limitation on its budget, with no
control by USA Taekwondo as to who he should or should not
pursue . . . .” Id. ¶ 220 (quoting
Examining the Olympic Community's Ability to Protect
Athletes from Sexual Abuse: Hearing Before the H. Subcomm. on
Oversight and Investigations of the H. Comm. on Energy and
Commerce, 115th Cong. 36 (2018) (statement of Steve
McNally, Executive Director of USAT) (unofficial transcript).
Plaintiffs allege these statements were false. Id.
Medals and Money
allege generally that the USOC and USAT sought to shield the
Lopez Defendants, because the institutions were fixated on
“medals and money.” Id. ¶ 6. In
2014, Mr. Blackmun purportedly stated, “For us,
it's all about medals[, ]” and “[h]ow do we
help American athletes get medals put around their necks? We
have a line of sight between every decision we make and the
impact on how many Americans will win medals.”
Id. (alterations in original) (quoting Sally
Jenkins, The USOC Needs a New Leader Who Cares About
Athletes More Than Expense Accounts, Wash. Post (July 3,
2018)). Plaintiffs allege “[a]nything or anyone that
gets in the way of the USOC's commercial quest for
‘medals and money' is silenced, obstructed,
defamed, or intimidated into keeping quiet.”
Id. ¶ 17.
characterize the Olympics as “big business.”
Id. ¶ 103. The USOC has the exclusive rights to
trademark everything related to the Olympics. Id.
¶ 109. It purportedly generates about $230 million per
year, largely from marketing and sponsorships. Id.
Thus, according to Plaintiffs, the USOC “generate[s]
hundreds of millions of dollars of additional revenue off the
backs and labor of the athletes who wear Team USA
uniforms.” Id. ¶ 111. From this revenue,
129 USOC employees make six figure salaries. Id.
¶ 176. Plaintiffs allege, “Because the Lopez
brothers were generating medals and money for the USOC and
USAT, . . . the USOC purposefully chose to discredit [Ms.
Meloon's reports of misconduct] and leave Jean and Steven
Lopez in their positions, which would bring further revenue
(money and medals) to the USOC.” Id. ¶
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pled facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two-prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations that are legal conclusions, bare
assertions, or merely conclusory. Id. at 678-80.
Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs have not
nudged their claims across the line from conceivable to
plausible.” SEC v. Shields, 744 F.3d 633, 640
(10th Cir. 2014) (quoting Khalik v. United Air
Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The
nature and specificity of the allegations required to state a
plausible claim will vary based on context.” Safe
Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th
Cir. 2017) (quoting Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus,
while the Rule 12(b)(6) standard does not require that a
plaintiff establish a prima facie case in a complaint, the
elements of each alleged cause of action may help to
determine whether the plaintiff has set forth a plausible
claim. Khalik, 671 F.3d at 1191.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, ” the
complaint has made an allegation, “but it has not shown
that the pleader is entitled to relief.” Id.
(quotation marks and citation omitted).
SAC asserts twenty-one claims against the various Defendants.
However, Plaintiffs have voluntarily withdrawn seven of those
claims (claims 1-2, 6-7, 11-12, and 18) in the briefing for
the present motions. See Resp. 3, ECF No. 139. Thus,
fourteen claims remain, which fall into three broad
categories: (1) claims by individual Plaintiffs under federal
sex trafficking and forced labor laws; (2) a RICO claim; and
(3) state law claims.
Defendants argue each claim should be dismissed, because the
claim is barred by the statute of limitations, the Plaintiffs
fail to plausibly state the claim, or both. See
Lopez Defs.' Mot. Dismiss, ECF No. 106; USOC's Mot.
Dismiss, ECF No. 108; USAT's Mot. Dismiss, ECF No. 109.
Plaintiffs filed an omnibus Response on November 1, 2018, and
the Defendants filed Replies to each motion on November 15,
2018. See ECF No. 139; USOC's Reply, ECF No.
155; Lopez Defs.' Reply, ECF No. 157; USAT's Reply,
ECF No. 158.
Alleged Violations of Federal Sex Trafficking and Forced
bring the majority of their claims under the Trafficking
Victims Protection Act (“TVPA”). Within these
claims, the parties raise several disputes that are best
resolved as preliminary matters. First, the parties
vigorously dispute the statute of limitations that is
applicable to the claims, since the TVPA (including its
limitation provision) has been amended during the period in
which the underlying sexual abuse has allegedly occurred.
Second, the parties dispute the definitions of key terms in
the TVPA. Specifically, the parties dispute whether the
alleged sexual acts fall within the definition of
“services” in 18 U.S.C. § 1589(a), and they
disagree on the proper definition of “venture” in
§ 1589(b). The latter issue leads to the question of the
elements necessary to state a claim under § 1589(b),
which I will also address as a preliminary matter. After
resolving these issues, I will address each claim
Applicable Statute of Limitations
and Defendants (particularly the Lopez Defendants) first
dispute the applicable statute of limitations. The Lopez
Defendants argue that the proper limitations period is that
which existed at the time of the underlying conduct; in other
words, since the TVPA carried a four-year statute of
limitations in 2006, any claim for a TVPA violation regarding
conduct that occurred on January 1, 2006 expired on January
1, 2010. Defendants contend that this result should persist
even if Congress later added a longer limitations period.
counter that the applicable statute of limitations is found
in the present amended statute, and any claim based on
conduct that occurred within that limitations period is
timely. However, Plaintiffs acknowledge this position
contains an exception: if at any time a claim would have been
barred under a previously existing limitations period, that
claim would be barred.
(but not all) of this dispute plays out in the context of
Plaintiffs' TVPA claims. Congress originally passed the
Victims of Trafficking and Violence Protection Act in 2000.
Pub. L. No. 106-386, 114 Stat. 1464. This Act created only
criminal penalties for conduct currently prohibited in 18
U.S.C. §§ 1589 and 1590. Trafficking Victims
Protection Act § 112(a)(2), 114 Stat. at 1486-87. In
2003, Congress amended the Act to add a private right of
action for victims of violations of §§ 1589, 1590,
or 1591 at § 1595. Trafficking Victims Protection
Reauthorization Act of 2003, Pub. L. No. 108-193 §
4(a)(4)(A), 117 Stat. 2875, 2878. At the time, the statute
carried a four-year limitations period for filing civil
actions. Cruz v. Maypa, 773 F.3d 138, 143- 44 (4th
Cir. 2014) (citing 28 U.S.C. § 1658(a)). Congress
amended the TVPA's limitations period to ten years on
December 23, 2008. William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008, Pub. L. No. 110-457
§ 221(2)(B), 122 Stat. 5044, 5067.
argue that since most of the alleged sexual abuse occurred
when the statute carried a four-year limitations period
(i.e., before December 23, 2008), any claim based on conduct
that occurred during that time period has expired, because
the SAC was filed in 2018, significantly more than four years
after 2008. Plaintiffs respond that the existing ten-year
statute of limitations applies, even to claims based on
conduct that occurred when the TVPA carried a four-year
limitations period, so long as a claim had never expired.
Notably, if the ten-year period were to apply here, then
claims based on conduct that occurred after May 4, 2008 (ten
years before Plaintiffs filed the First Amended Complaint)
are timely. However, because the ten-year limitations period
did not commence until December 23, 2008, I must determine
whether a claim based on conduct that occurred between May 4,
2008, and December 22, 2008, is timely.
Cruz, the Fourth Circuit addressed this precise
question in the context of the TVPA amendments at issue here.
The plaintiff in Cruz alleged that the defendant
transported her from the Philippines to serve as a domestic
employee at the defendant's residence, where he forced
her to work grueling hours and isolated her from contacting
her family. Id. at 141-43. Eventually, the plaintiff
brought a lawsuit against the defendant for violations of the
TVPA. Id. at 143-44. The conduct alleged by Cruz
occurred at a time when the TVPA carried the four-year
limitation period for filing a civil action. Id. at
143. But, by the time the plaintiff filed her suit, her
claims would have been time barred if they were subject to
the four-year limitation. See Id. (recounting that
the district court dismissed the plaintiff's TVPA claims,
because they were barred by the four-year statute of
limitations). However, the plaintiff argued her claims were
subject to the ten-year statute of limitations created by the
2008 amendment. Id. Ultimately, the Fourth Circuit
held that the ten-year limitations period applied to claims
that were unexpired at the time of the 2008 amendment,
finding that its conclusion did not amount to imposing an
impermissible retroactive effect. Id.
reaching its decision, the Fourth Circuit followed the
Supreme Court's framework in Landgraf v. USI Film
Products, 511 U.S. 244 (1994), for determining whether a
statute applies retrospectively. See Cruz, 773 F.3d
at 144-45. In Landgraf, the Court recognized that
“the presumption against retroactive legislation is
deeply rooted in our jurisprudence, ” 511 U.S. at 265,
“but it also noted that ‘[a] statute does not
operate “retrospectively” merely because it is
applied in a case arising from conduct antedating the
statute's enactment, '” Cruz, 773 F.3d
at 144 (alteration in original) (quoting Landgraf,
511 U.S. at 269). Landgraf provides a three-step
analysis to determine whether a statute applies to conduct
that occurred prior to the enactment of the statute. First, a
court must “determine whether Congress has expressly
prescribed the statute's proper reach.”
Landgraf, 511 U.S. at 280. If so, Congress'
intent is given effect. Id. But second, if the
statute does not contain such a command, “the court
must determine whether the new statute would have retroactive
effect, i.e., whether it would impair rights a party
possessed when he acted, increase a party's liability for
past conduct, or impose new duties with respect to
transactions already completed.” Id. Third, if
the statute would have retroactive effect, the Supreme
Court's “traditional presumption teaches that it
does not govern absent clear congressional intent favoring
such a result.” Id.
in Cruz-Congress has not expressly prescribed the
current statute of limitation's proper reach, so I must
determine whether applying it in this case would have
retroactive effect. In Cruz, the court determined
that it would not for two reasons. First, the court found
that “applying a new limitations period to unexpired
claims does not ‘attach new legal consequences to
events completed before its enactment.'”
Id. at 145 (alteration in original) (quoting
Landgraf, 511 U.S. at 270). It found that, as long
as a claim was unexpired at the time Congress extended the
relevant statute of limitations, applying that statute
“does not ‘increase a party's liability for
past conduct[.]'” Id. (quoting
Landgraf, 511 U.S. at 280). Second, the Fourth
Circuit noted “in the criminal context, there is a
consensus that extending a limitations period before
prosecution is time-barred does not run afoul of the Ex Post
Facto Clause of the Constitution.” Id.
(collecting cases). I agree with the Fourth Circuit's
analysis. Any of Plaintiffs' TVPA claims that were
unexpired when Congress amended the Act to include a ten-year
limitations period are timely to the extent they fall within
ten years of the filing the First Amended Complaint. In this
case, any claim based on conduct that occurred between May 4,
2008, and December 22, 2008 (the disputed period), was within
the then-existing four-year limitations period when Congress
amended the TVPA on December 23, 2008. As such, those claims
were never expired and, therefore, they are timely asserted
in this case. See also Owino v. CoreCivic, Inc., No.
17-CV-1112 JLS (NLS), 2018 WL 2193644, at *12 (S.D. Cal. May
14, 2018) (noting Cruz strongly supports the
conclusion that the current ten-year statute of limitations
applies to TVPA claims).
Lopez Defendants oppose this conclusion and cite to
Abarca v. Little, 54 F.Supp.3d 1064 (D. Minn. 2014)
for support. Lopez Defs.' Reply 4. To be sure, that court
was presented with the same question and arrived at a
different conclusion, but I am not persuaded by its
reasoning. The court in Abarca decided against
applying the ten-year limitations period to conduct that
occurred before its enactment, concluding it “would
have impermissible retroactive effect because it
significantly broadens the basis for civil liability under
the [TVPA].” 54 F.Supp.3d at 1069. However, if
“significantly broadening the basis” for
liability in the criminal context does not implicate
retroactivity, I see no reason (and Abarca does not
explain) why retroactivity would be implicated in the civil
context. See Cruz, 773 F.3d at 145 (“[I]n the
criminal context, there is a consensus that extending a
limitations period before prosecution is time-barred does not
run afoul of the Ex Post Facto Clause of the
Constitution.”). More critically, the plaintiff in
Abarca brought his claims under sections of the TVPA
that, at the time of the conduct, only provided for
criminal liability. See 54 F.Supp.3d at
1069 (“[The plaintiff] brings civil claims under [TVPA]
provisions that previously only imposed criminal liability .
. . .”). Thus, the court there correctly noted that
“[r]etroactively applying the amendment would subject
defendants to increased liability not contemplated when they
engaged in the alleged conduct.” Id. Applying
the civil remedy provision to conduct statutorily prohibited
as “criminal” would certainly run afoul of
Landgraf's prohibition on applying a statute
that would “increase a party's liability for past
conduct.” 511 U.S. at 280. Even so, the Abarca
court's concern with “significantly broaden[ing]
the basis for civil liability” suggests it may have
ruled that applying the amended statute of limitations would
have an impermissible retroactive effect, 54 F.Supp.3d at
1069, but I find the reasoning of the Fourth Circuit in
Cruz more sound. Plaintiffs' TVPA claims that
are within the present ten-year statute of limitations are
timely asserted in this case. At the same time,
Plaintiff's claims based on conduct that occurred outside
the limitations period, as described here, are barred.
Definition of “Services” in 18 U.S.C.
§§ 1589(a), 1590(a)
parties also dispute whether coerced (but purportedly
consensual) sexual acts fall within the definition of
“labor” or “services” in the TVPA.
Defendants argue that the sexual conduct alleged in the SAC
does not fall within the statutory definition. The Lopez
Defendants make this argument most clearly when they assert
the “sexual services” alleged in the SAC are not
within the “plain meaning” of the terms
“labor” or “services” in 18 U.S.C.
§ 1589(a). See Lopez Defs.' Mot. Dismiss 9.
But the Tenth Circuit has embraced definitions of those terms
that are broader than the Lopez Defendants propose, in a
context that is analogous to the allegations in the SAC.
United States v. Kaufman, 546 F.3d 1242 (10th Cir.
2008), federal prosecutors brought charges under § 1589
against a married couple who operated an “unlicensed
group home for the mentally ill” and who persuaded,
coerced, or forced the home's residents to perform a
variety of bizarre sexually explicit acts. See Id.
at 1246-50. For example, the couple forced the mentally ill
patients to perform for pornographic videos. Id. at
1248. Other videos showed the husband touching the
patients' genitals. Id. at 1249. At trial, the
jury was given instructions that defined “labor”
as “the expenditure of physical or mental effort”
and “services” as “conduct or performance
that assists or benefits someone or something.”
Id. at 1260. The defendants appealed, objecting to
these instructions and arguing that the statute applied only
to “labor or services” that constitute
“work in an economic sense.” Id. The
Tenth Circuit rejected this argument.
the court noted that the definitions used by the district
court were “the ordinary meaning of those terms.”
Id. at 1261 (citing 8 Oxford English Dictionary 559
(2d ed. 1989); 15 Oxford English Dictionary 34, 36 (2d ed.
1989)). Second, it found that the purpose of the TVPA is to
“combat trafficking in persons, a contemporary
manifestation of slavery whose victims are predominantly
women and children, to ensure just and effective punishment
of traffickers, and to protect their victims.”
Id. (citing 22 U.S.C. § 7101(a)). Finally, the
court drew upon the Fourth Circuit's decision in
United States v. Udeozor, 515 F.3d 260, 266 (4th
Cir. 2008), in which the court noted that sexual abuse has
been “a badge and incident of servitude which is
distressingly common, not just historically, but for young
women who find themselves in coercive circumstances
today.” The Tenth Circuit concluded this statement
“suggests that sexual acts that have been coerced
by other means are covered by the involuntary servitude
statute.” Kaufman, 546 F.3d at 1262 (emphasis
case, Plaintiffs allege the Lopez Defendants used their
positions as influential members of USAT to coerce them to
perform or submit to engaging in various sexual acts. SAC
¶ 708. The Plaintiffs all felt their ability to compete
required a “pay-to-play, ” and they could not
refuse the Lopez Defendants' requirements in “order
to compete in USA Taekwondo and reach the Olympics.”
Id. Ms. Joslin alleges, “out of fear of the
Lopez brothers, ” she permitted Steven to have sex with
her for the remainder of her taekwondo career after they
first had sex when he offered to be her coach. Id.
¶¶ 620-24. Likewise, Ms. Means alleges she had sex
with Steven Lopez in 2008 as they traveled to taekwondo
events worldwide. Id. ¶ 688. “[S]exual
acts that have been coerced by other means are covered by the
involuntary servitude statute.” Kaufman, 546
F.3d at 1262. In light of Kaufman, I conclude that
the pay-to-play sexual acts alleged in the SAC are
“labor” or “services” as those terms
exist in the TVPA.
Definition of “Venture” in 18 U.S.C. §
parties next dispute the definition of the term
“venture” in § 1589(b). This term also
appears in § 1595(a), which provides the civil remedy
that permits Plaintiffs to assert their claims in the SAC.
Those two sections provide, respectively:
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).
§ 1589(b) (emphasis added).
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
§ 1595(a) (emphasis added).
by addressing the definition the USOC encourages me to adopt.
The USOC argues that “venture” is defined as a
“sex trafficking venture.” USOC's Mot.
Dismiss 9. To illustrate its position, the USOC modified
Plaintiffs' allegation to incorporate its definition.
See Id. (“Count 9 alleges that the USOC knew
or recklessly disregarded ‘the fact that the [sex
trafficking] venture was engaged in the providing or
obtaining of Amber's labor or services by means of
force.'”) (alteration added by the USOC) (quoting
SAC ¶ 796).
USOC relies on two cases to support its argument that
“venture” means “sex trafficking
venture”: United States v. Afyare, 632
Fed.Appx. 272 (6th Cir. 2016) and Noble v.
Weinstein, 335 F.Supp.3d 504 (S.D.N.Y. 2018), which
relies on Afyare. At the outset, it is critical to
note that both cases involve claims brought under §
1591, which also potentially creates liability against those
who “participat[e] in a venture” when the venture
is engaged in sex trafficking. See §
1591(a)(2). Neither case involves a claim under §
1589(b), and there are persuasive reasons to conclude (as at
least one other court has) that the term
“venture” is defined differently in §
1591(a)(2) than it is in § 1589(b).
will first address the USOC's reliance on the holding in
Afyare for its definition of “venture.”
Section 1591 provides as follows:
(a) Whoever knowingly-
(1) in or affecting interstate or foreign
commerce, or within the special maritime and territorial
jurisdiction of the United States, 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
§ 1591(a) (emphasis added). Notably, the term,
“venture, ” is explicitly defined in §
(e) In this section:
(6) The term “venture” means any
group of two or more individuals associated in fact, whether
or not a legal entity.
§ 1591(e)(6). Also of note, Congress appears to have
confined this definition only to § 1591. See
id. (“In this section . . . [t]he
term ‘venture' means any group of two or more
individuals associated in fact, whether or not a legal
entity.” (emphasis added)). In fact, neither
§§ 1589 nor 1595 define “venture.” In
Afyare, the Sixth Circuit concluded that the
appropriate definition of “venture” was not
provided solely by § 1591(e)(6), or by the common
definition of “venture” in Black's Law or
Random House Webster's Unabridged dictionaries. 632
Fed.Appx. at 279, 284. Instead, the court concluded that
“venture” in § 1591 is defined as a
“sex-trafficking venture.” Id. at 285.
To arrive at this definition, the court drew upon a principle
of statutory interpretation that “when interpreting a
statute, [a court will] ‘consider not only the bare
meaning of the critical word or phrase but also its placement
and purpose in the statutory scheme.'” Id.
at 284 (quoting Holloway v. United States, 526 U.S.
1, 6 (1999)). Applying this principle, the Sixth Circuit
concluded that it must consider not only the definition in
§ 1591(e)(6), but also the “context of §
1591(a)(2), which specifies ‘a venture which has
engaged in an act described in violation of paragraph
(1),' i.e., sex trafficking.” Id. at
284-85 (quoting § 1591(a)(2)). Thus, the court found
“its ‘placement and purpose' in §
1591(a)(2) modify its ‘bare meaning' in §
1591(e)(), ” which led the court to conclude that
the proper definition is limited to a “sex-trafficking
USOC takes two approaches to incorporating
Afyare's definition into this case. It first
suggests “venture” in §§ 1589(b) and
1595(a) means a “sex-trafficking venture, ” just
as the Afyare court held it does in § 1591.
USOC's Mot. Dismiss 9. But I do not find this argument
persuasive. The Afyare court's conclusion that
“venture” in § 1591(a)(2) means
“sex-trafficking venture” was founded on its
“placement and purpose” in § 1591-the
section creating liability for acts of sex trafficking. Here,
Plaintiffs' claims are brought under § 1589, which
does not prohibit sex trafficking. Rather, it creates
liability for “[w]hoever knowingly provides or obtains
the labor or services of a person” by certain
enumerated means (discussed later in this Recommendation).
§ 1589(a). Thus, the Sixth Circuit's rationale for
its definition of a “venture” in § 1591
cannot be reasonably applied to the definition in §
1589(b), which significantly differs from § 1591.
USOC's second approach, proposed only by inference, is to
suggest that “venture” in § 1589(b) means a
“forced labor venture.” See USOC's
Reply 2 (“The theory of knowingly benefiting from
participation in a forced labor venture also
fails.” (emphasis added)). The USOC's logic for
proposing this definition is self-apparent: since the
Afyare court concluded “venture” in
§ 1591(a)(2) must mean “sex trafficking
venture” due to its placement in a section that
prohibits sex trafficking, 632 Fed.Appx. at 284-85, the term
“venture” in a section prohibiting forced labor
(among other things) must mean the “venture” in
that section is defined as a “forced labor
venture.” However, no court of which I am aware has
endorsed this definition, and the USOC cites to none.
whether I should apply the USOC's proposed definition
requires an analysis of § 1589(b). That subsection
creates liability for “[w]hoever knowingly . . .
benefits . . . from participation in a venture” which
has obtained forced labor or services in violation of §
1589(a). § 1589(b). Under the USOC's definition,
§ 1589(b) creates liability only if a party knowingly
benefits from participation in a forced labor (or presumably,
forced services) venture. The USOC argues that “the
element of ‘participation' . . . requires
allegations of ‘specific conduct that further[s]'
the purported forced labor venture.” USOC's Reply
3. It cites to four cases to support its position, but these
cases are distinguishable in that they resolve claims under
§ 1589(a), which creates liability for the party that
obtains forced labor or services, not § 1589(b), which
creates liability for a party that knowingly participates in
USOC relies on the following cases: (1) Menocal v. GEO
Group, Inc., 113 F.Supp.3d 1125 (D. Colo. 2015); (2)
Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS),
2018 WL 2193644 (S.D. Cal. May 14, 2018); (3) Adhikari v.
Daoud & Partners, 697 F.Supp.2d 674 (S.D. Tex.
2009); and (4) Nunag-Tanedo v. East Baton Rouge Parish
School Board, 790 F.Supp.2d 1134 (C.D. Cal. 2011).
USOC's Reply 3. Two of these cases (Menocal and
Nunag-Tanedo) do not involve claims brought under
§ 1589(b), but consider only claims for direct liability
under § 1589(a). See Menocal, 113 F.Supp.3d at
1131-33; Nunag-Tanedo, 790 F.Supp.2d at 1143- 46.
The other cases (Owino and Adhikari)
include claims brought under § 1589(a) and the
“knowingly benefit” provision, but neither court
found it necessary to perform an analysis of the sufficiency
of the pleadings solely under the “benefit from
participation in a venture” provision. See
Owino, 2018 WL 2193644, at *13 (stating that the
plaintiffs “utilize” the benefit prong of §
1595(a)); Adhikari, 697 F.Supp.2d at 684-85
(concluding that the plaintiffs alleged the defendant
“actively participated in and knowingly benefited from
a venture that involved forced labor and trafficking”).
The USOC proffers these opinions for support of its argument
that, for it to be liable under § 1589(b), Plaintiffs
must allege it engaged in conduct that would also make it
liable as the principal under § 1589(a).
USOC's Reply 3 (“The SAC includes no comparable
allegations [to the four cited cases] as to the
USOC.”). But this interpretation would render §
1589(b) redundant, and courts should not interpret a statute
so as to make an entire provision redundant. Walters v.
Metro. Educ. Enters., Inc., 519 U.S. 202, 209 (1997)
(“Statutes must be interpreted, if possible, to give
each word some operative effect.”); Kungys v.
United States, 485 U.S. 759, 778 (1988) (noting the
“cardinal rule of statutory interpretation that no
provision should be construed to be entirely
redundant”). I decline to adopt the USOC's proposed
faced with interpreting a statutory term the legislature has
not defined, the Tenth Circuit instructs that courts
“begin by looking to the language of the statute and
giv[ing] the words used ‘their ordinary
meaning.'” U.S. v. Markey, 393 F.3d 1132,
1136 (10th Cir. 2004) (quoting United States v.
Plotts, 347 F.3d 873, 876 (10th Cir. 2003)).
Accordingly, I find it proper here to adopt the common
definition of “venture.” Notably, in interpreting
§ 1589(b), at least one other court has adopted the
definition of “venture” from Black's Law
Dictionary: “‘an undertaking that involves
risk,' and is typically associated with ‘a
speculative commercial enterprise.'” Bistline
v. Jeffs, No. 2:16-CV-788 TS, 2017 WL 108039, at *10 (D.
Utah Jan. 11, 2017) (citing Black's Law Dictionary (10th
ed. 2014)). In Bistline, the court concluded that an
alleged relationship between a defendant and a law firm that
provided the defendant legal services was insufficient to
allege that a venture existed under § 1589(b).
Id. at *9-10. In so concluding, the court found that
“[n]either ‘participation' nor
‘venture' has been defined in the context of 18
U.S.C. § 1589(b).” Id. at *10.
Interestingly, the court came to its conclusion after the
Sixth Circuit decided Afyare, but neither adopted
its definition nor cited to the case. Rather, in the absence
of controlling law, the court resorted to the term's
common definition as instructed by the Tenth Circuit.
case, I am faced with a term that has not been defined by
Congress or the Tenth Circuit and, thus, I will give the word
its ordinary meaning: “[a]n undertaking that involves
risk, ” especially “a speculative commercial
enterprise.” Black's Law Dictionary (10th ed.
Elements of a Civil Claim under 18 U.S.C.§§ 1589(b)
with the question of the definition of “venture”
in § 1589(b) is the question of the elements to state a
claim under that subsection. To most effectively articulate
my resolution of the question, I find it helpful to compare
the provision to § 1589(a). Those two subsections
provide in relevant part:
Whoever knowingly provides or obtains the labor or services
of a person by any one of, or by any combination of, the
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).
will discuss below, I find the following are the elements
necessary to establish a violation of § 1589(b) of the
(1) the party knowingly participated in a venture;
(2) the party knowingly benefitted from the venture;
(3) the venture has engaged in the providing or obtaining of
labor or services in violation of the TVPA; and
(4) the party knew or recklessly disregarded the fact that
the venture has engaged in the providing or obtaining of such
labor or services.
simplest form of this claim would involve two individuals:
Person A and Person B. These two people enter into a
venture-a speculative commercial enterprise. The venture does
well and Person A benefits financially from it. During this
time, Person B uses the venture to obtain the services of
Person C by threat of force, in violation of the TVPA. Person
A knows of Person B's conduct. Nevertheless, Person A
continues to participate in-and benefit from-the venture.
point there are only two possible results from this example.
Either Person A is already liable for violating §
1589(b)-and is civilly liable to Person C through §
1595-or he is not. If not, then some further conduct by
Person A is necessary to be liable under the TVPA's
forced labor statute.
definition the USOC suggests, Person A is not liable under
the scenario without some further conduct. The USOC would
argue that Person A is not liable until he engages in
“specific conduct that furthers” the forced labor
aspect of the venture, which is required in subsection (a).
USOC's Reply 3 (alteration omitted). To the extent he
engages in such “specific conduct, ” he would be
directly liable under § 1589(a), just as
Menocal, Owino, Adhikari, and
Nunag-Tanedo demonstrate. As I discussed above, I
will not read § 1589(b) to be redundant of §
1589(a), and the elements of a § 1589(b) claim are those
I just identified above.
addressed preliminary matters raised by the present motions,
I now address Defendants' arguments that each claim fails
under Rule 12(b)(6). For each claim, I will identify the time
period in which such claim is available, if it is plausibly
Claim 3: Gabriela Joslin ...