Opinion
3:19-cv-06153-BHS-TLF
09-16-2021
M.L., Plaintiff, v. Craigslist Inc. et al., Defendants.
Noted for October 8, 2021
REPORT AND RECOMMENDATION
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE.
This matter comes before the Court on defendant 2005 Investors LLC's motion for partial summary judgment (Dkt. 173; 179 (Sealed)) and defendant craigslist Inc.'s motion for partial summary judgment (Dkt. 175; 180 (Sealed)). For the reasons set forth below, the Court should GRANT IN PART and DENY IN PART 2005 Investors LLC's Motion for Partial Summary Judgment (Dkt. 173, Dkt. 179 (Sealed)) and DENY craigslist's Motion for Partial Summary Judgment (Dkt. 175, Dkt. 180 (Sealed)).
2005 Investors LLC contends that the Court should: (1) dismiss plaintiffs financial beneficiary claims based on the Trafficking Victims Protection Reauthorization Act (“TVPRA”) for alleged events occurring prior to December 23, 2008 or after August 2015; (2) dismiss plaintiffs negligence, civil conspiracy and outrage claims, to the extent they are based on alleged conduct at Howard Johnson since plaintiffs eighteenth birthday as time-barred; (3) dismiss plaintiffs Washington Criminal Profiteering Act claims based on alleged conduct at Howard Johnson between plaintiffs eighteenth birthday and July 26, 2011 or after August 2015; and (4) dismiss plaintiffs SECA claims based on alleged conduct at Howard Johnson occurring after plaintiffs eighteenth birthday.
For the reasons discussed in this Report and Recommendation, the Court should: (1) dismiss with prejudice plaintiffs TVPRA claims for conduct that occurred before December 23, 2008; (2) dismiss with prejudice plaintiffs claims against 2005 Investors LLC for alleged conduct at the Howard Johnson after August 2015 - the date that 2005 Investors LLC sold its interest in the Howard Johnson location; (3) deny 2005 Investors LLC's motion on statute of limitations because under Washington's discovery rule, questions of fact remain regarding when plaintiffs claims accrued; and (4) limit plaintiffs recovery of costs and attorney fees under RCW 9.68A.130 (SECA) to plaintiffs claims based on conduct occurring before plaintiffs eighteenth birthday.
craigslist argues that plaintiffs state law claims based on childhood sexual abuse are time-barred, craigslist maintains that under RCW 4.16.340, plaintiffs childhood sexual abuse claims accrued three years after she turned eighteen, unless one of the RCW 4.16.340(1) discovery rules applies, craigslist contends that even under RCW 4.16.340's discovery rules, plaintiffs claims are untimely. Finally, craigslist argues the Court should dismiss plaintiffs claims arising from conduct after her eighteenth birthday as time-barred by the three-year statute of limitations.
For the reasons discussed in this Report and Recommendation, the Court should deny craigslist's motion because (1) questions of fact remain regarding when plaintiffs claims based on conduct after her eighteenth birthday accrued under Washington's discovery rule and (2) questions of fact remain regarding whether one of the discovery rules under RCW 4.16.340(1) applies to this action.
FACTUAL BACKGROUND
Plaintiff alleges that over a period of 15 years, commencing when plaintiff was 12 years old, plaintiff was trafficked and subjected to abuse, rape, abductions and assaults. Dkt. 187 at ¶ 5. Plaintiff alleges that during this period, adult traffickers used the craigslist website to advertise plaintiff at different locations, including the Howard Johnson Inn owned by 2005 Investors LLC. Id. at ¶¶ 6, 21.
Plaintiff asserts that her traffickers' posts, and advertising plaintiff for commercial sex, complied with craigslist's terms of use, regulations and guidelines. Dkt. 187 at ¶¶ 42-46, 79. The second amended complaint also alleges that craigslist's system facilitated and assisted interactions between the traffickers and purchasers. Id. at ¶ 4748. Plaintiff included, in her complaint, advertisements that her traffickers allegedly posted on the craigslist website in 2009. Id. at¶ 97; Exhibit 1.
Plaintiff alleges that 2005 Investors LLC “knowingly benefited, or received something of value from its facilitation of or participation in a venture which it knew or should have known had engaged in sex trafficking.” Dkt. 187 at ¶21. The second amended complaint states that plaintiff was trafficked at the Howard Johnson Inn owned by 2005 Investors LLC on multiple occasions beginning in 2003 and ending on or about August 2015. Id. at¶¶ 148a, 184, 186, 187. Plaintiff contends that she was held at this location for over one year between 2006 and 2008. Id. at ¶¶ 148a; 185. It is undisputed that 2005 Investors LLC sold its interest in the Howard Johnson franchise in August of 2015. Dkt. 187 at¶ 21, 184; Declaration of DayabirS. Bath, Dkt. 176 at¶ 4.
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DISCUSSION
Adorned in Grace is a non-profit organization offering support services for traumatized women with an emphasis on sexual assault and human trafficking. Dkt. 191 -4 (Sealed) at ¶ 7
In support of their motion for summary judgment, craigslist submitted a reply brief along with the Supplemental Declaration of Allison S. Blanco. Dkt. 196, 197, 198 (Sealed), 199 (Sealed), craigslist attached excerpts from the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition, 2013) (“DSM-V”) and asks the Court to take judicial notice of these documents. Id. Pursuant to Local Rule 7(g), plaintiff filed a sur-reply requesting the Court strike craigslist's reference to the DSM-V and the attachment to the Supplemental Declaration of Allison S. Blanco. Dkt. 203 (Sealed).
When new evidence is presented in a reply brief, the court should not consider the new evidence without giving the non-movant the opportunity to respond. Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). However, evidence is not “new” if it is submitted in direct response to proof or evidence presented in opposition to a motion. Rayon-Terrell v. Contra Costa County, 232 Fed.Appx. 626, 629 n. 2 (9th Cir. 2007).
Here, craigslist introduces the DSM-V to support their position that the statute of limitation should not be tolled -- because plaintiff was previously aware of her alleged injuries and that the alleged injuries are not new or a qualitatively different harm. Dkt. 198 (Sealed). This is not an issue or evidence that plaintiff raised for the first time in her response brief, craigslist raised this same issue and made the same argument, referencing plaintiffs medical records, in their motion for summary judgment. Dkt. 180 (Sealed), craigslist had the opportunity to raise issues related to the DSM-V and to introduce the DSM-V in their motion for summary judgment.
It would be improper to allow craigslist to introduce new evidence in their reply brief; plaintiff does not have the opportunity to substantively respond to the new evidence. The undersigned recommends the Court grant plaintiffs motion to strike, and decline to consider craigslist's newly proffered evidence in deciding this motion.
B. Motions for Summary Judgment
Summary judgment is supported if the materials in the record “show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Federal Rule of Civil Procedure (FRCP) 56 (a), (c). The moving party bears the initial burden to demonstrate the absence of a genuine dispute of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine dispute concerning a material fact is presented when there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In this context, materiality means the fact is one that is “relevant to an element of a claim or defense and whose existence might affect the outcome of the suit”; thus, materiality is “determined by the substantive law governing the claim.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
The non-moving party is required to show that genuine issues of material fact '“can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”' California Architectural Building Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (quoting Anderson, 477 U.S. at 250) (emphasis in original). When the Court considers a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [their] favor.” Anderson, at 255. Yet the Court is not allowed to perform the jury's function - the Court may not weigh evidence, draw legitimate inferences from facts, or decide credibility. Id. If the moving party meets their initial burden, an adverse party may not rest upon the mere allegations or denials of his pleading; his or her response, by affidavits or as otherwise provided in FRCP 56, must set forth specific facts showing there is a genuine issue for trial. FRCP 56(c). The Court may not disregard evidence solely based on its self-serving nature. Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015). “The district court can disregard a self-serving declaration that states only conclusions and not facts that would be admissible evidence.” Id.
2005 Investors LLC requests that the Court limit plaintiffs claims and dismiss the following claims: (1) plaintiffs “financial beneficiary” claim based upon the Trafficking Victims Protection Reauthorization Act for any alleged stays or events at the Howard Johnson prior to December 23, 2008 or after August of 2015; (2) plaintiffs negligence, civil conspiracy, and outrage claims to the extent they are based on any alleged stays or events at the Howard Johnson since plaintiffs eighteenth birthday; (3) plaintiffs claims under the Washington Criminal Profiteering Act, to the extent they are based on any alleged stays at the Howard Johnson location between plaintiffs eighteenth birthday and July 26, 2011, or after August 2015; and (4) plaintiffs claims under the Sexual Exploitation of Children Act, to the extent that the claims are based on alleged stays or events at the Howard Johnson occurring on or after plaintiffs eighteenth birthday. Dkt. 179 (Sealed), craigslist requests that the Court dismiss all of plaintiffs state law claims as barred by the applicable statute of limitation. Dkt. 180 (Sealed).
1. Trafficking Victims Protection Reauthorization Act (“TVPRA”)
The undersigned recommends that the Court grant 2005 Investors LLC's motion for summary judgment with regards to plaintiffs TVPRA claims. 18 U.S.C. § 1595(a) states that a person who is the victim of sex trafficking under 18 U.S.C.S. § 1581 et seq.:
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 action in violation of this chapter [18 U.S.C.S. §§ 1581 et seq.]) in an appropriate court of the United States and may recover damages and reasonable attorney fees.
Congress enacted Section 1595 in 2003 to provide a private right of action for victims of human trafficking. Ditullio v. Boehm, 662 F.3d 1091, 1094 (9th Cir. 2011). The 2003 law did not permit recovery against individuals who financially benefit from participation in the trafficking venture; this cause of action was added in the 2008 amendment. Id. at 1094 n. 1. Because the statute does not contain a clear intent to apply retroactively, the “financial benefit” cause of action may only apply to conduct occurring on or after December 23, 2008 - the 2008 amendment's effective date. Owino v. CoreCivic, Inc., No. 17-cv-1112-JLS, 2018 WL 2193644 (S.D. Cal. May 14, 2018) (citing Landgrafv. UsiFilm Prods., 511 U.S. 244, 280 (1994)).
Based on the foregoing, as a matter of law, plaintiff cannot bring a “financial benefit” TVPRA claim based on conduct that occurred before December 23, 2008. Additionally, it is undisputed that 2005 Investors LLC sold its interest in the relevant Howard Johnson location in August 2015. Accordingly, any conduct occurring at that location after August 2015 cannot be reasonably attributed to 2005 Investors LLC.
The undersigned recommends that the Court dismiss plaintiffs “financial benefit” TVPRA claims against 2005 Investors LLC to the extent that they are based on conduct at the relevant Howard Johnson location before December 23, 2008 or after August 31, 2015. Plaintiffs TVPRA claims based on occurrences between December 23, 2008 and August 31, 2015 should not be dismissed.
2. State Law Claims after Plaintiffs Eighteenth Birthday
Both 2005 Investors LLC and craigslist argue that plaintiffs claims for events occurring after her eighteenth birthday are barred by the relevant statute of limitations. For the reasons set forth below, the undersigned recommends that the Court deny both motions for summary judgment on this issue.
The relevant statute of limitations for plaintiffs state law claims is three years. RCW 4.16.080; Cox v. Oasis Physical Therapy, PLLC, 153 Wn.App. 176, 192 (2009) (outrage); Walker v. Orkin, LLC, 10 Wn.App. 2d 565, 567 (2019) (negligence). Generally, a cause of action accrues when the act or omission causing the tort injury occurs. Ohnemus v. State, 195 Wn.App. 135, 143 (2016). Under Washington's discovery rule, a cause of action does not accrue until a party knows or should have known the essential elements of the cause of action. Green v. A.P.C., 136 Wn.2d 87, 95 (1998) (applying the discovery rule to RCW 4.16.080.)
This discovery rule requires a prospective plaintiff to exercise due diligence in discovering the basis for their causes of actions. Ohnemus, 195 Wn.App. at 143. Under the discovery rule, the statute of limitations accrues when plaintiff knows or should know the relevant facts, regardless of whether the plaintiff also knows that these facts establish a cause of action. Id. The key consideration is the factual, not legal, basis for the cause of action. Clare v. Saberhagen Holding, Inc., 129 Wn.App. 599, 603-04 (2005). Whether plaintiff exercised due diligence is normally a question of fact, which cannot normally be determined at the summary judgment stage. Id.
The discovery rule acknowledges that under certain circumstances, the literal application of a statute of limitation could result in grave injustices and seeks to avoid such outcomes. 1000 Virginia Ltd. P'Ship v. Vertecs, 158 Wn.2d 566, 576-77 (2006). The Court must balance the harm of compelling one to answer stale claims against the possibility of unfairly precluding justified claims. Id. at 579. To strike this balance, courts have applied the discovery rule when a plaintiff lacks the means or ability to detect the wrong within the applicable limitation period, because otherwise the plaintiff would be denied all meaningful opportunities to bring a warranted cause of action. In re Estates of Hibbard, 118 Wn.2d 737, 749 (1992).
Plaintiff alleges that craigslist knowingly facilitated and assisted the interactions between her traffickers and the purchasers. Dkt. 187 at ¶¶ 42-48, 79. In her deposition, plaintiff acknowledged that she was aware that her traffickers advertised her on craigslist and that she recalled postings dating to 2016. Dkt. 191-2 (Sealed). Plaintiff is also alleging that she was trafficked ata Howard Johnson Inn owned by 2005 Investors LLC and that 2005 Investors LLC knowingly benefited from the trafficking and facilitated the venture. Dkt. 187 at¶¶21, 148a, 184, 186, 187. Plaintiff contends that she was held under the control of her traffickers until she escaped in 2017. Dkt. 191-2 (Sealed), Dkt. 191-4 (Sealed). Accordingly, absent tolling or the discovery rule, plaintiffs claims against craigslist would accrue in 2016 (the last alleged advertisement posted on the craigslist website) and on August 31, 2015 for claims against 2005 Investors LLC (the last date that 2005 Investors LLC owned an interest in Howard Johnson).
The evidence in the record indicates that plaintiff was generally aware that the traffickers advertised plaintiff on the craigslist website and that she was trafficked at a
Howard Johnson. Plaintiff is not alleging that these defendants are liable simply because the conduct occurred on their website and premises. Plaintiff is alleging that these defendants knowingly facilitated, allowed and profited from the trafficker's venture. There is no indication that plaintiff was aware of the facts that she is now alleging or the alleged extent of the defendants' participation. Additionally, when plaintiff knew sufficient facts to put her on notice of the defendants' wrongdoing and whether plaintiff exercised due diligence to discover the facts of this case are questions of fact, inappropriate for determination on summary judgment.
Further, plaintiff is alleging that her traffickers held her captive and under their control by force and threat of violence until 2017. If a jury determined that plaintiff was actually trafficked and kept captive until 2017, it would appear that plaintiff lacked the means or opportunity to investigate the facts of this case or to bring her current cause of action before 2017. The possibility of unfairly precluding plaintiffs claims would outweigh the harm to defendants. Therefore, questions of fact remain regarding whether plaintiff was able to diligently pursue her claims and whether the discovery rule applies.
Questions of fact remain regarding when plaintiffs state law claims based on conduct after plaintiffs eighteenth birthday accrued. The Court should deny both motions for summary judgment as applied to plaintiffs state law claims based on conduct occurring after her eighteenth birthday. However, plaintiffs claims against 2005 Investors LLC should be limited to conduct occurring before August 31, 2015 - the date that 2005 Investors LLC sold its interest in Howard Johnson - because this is the last date that any of the alleged conduct could reasonably be attributed to 2005 Investors LLC.
3. State Law Claims before Plaintiffs Eighteenth Birthday
craigslist argues that plaintiffs state law claims based on conduct occurring before her eighteenth birthday should also be dismissed as untimely. Dkt. 180 (Sealed). The Court should deny craigslist's motion for summary judgment on this issue.
Pursuant to RCW 4.16.340, claims based on intentional conduct brought by any person to recover damages for injuries resulting from childhood sexual abuse must be commenced within the later of the following periods:
(a) Within three years of the act alleged to have caused the injury or condition;
(b) Within three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by said act; or
(c) Within three years of the time the victim discovered that the act caused the injury for which the claim is brought
PROVIDED, That the time limit for commencement of an action under this section is tolled for a child until the child reaches the age of eighteen years.RCW 4.16.340(1).
This statute was enacted to “provide a broad avenue of redress for victims of childhood sexual abuse who too often were left without a remedy under previous statutes of limitations.” C.J.C. v. Corporation of the Catholic Bishop, 138 Wn.2d 699, 712 (1999). The statute acknowledges that victims of childhood sexual abuse may be unable to connect the abuse to any injury or make the connection between the conduct and the emotional damages it causes, until the statute of limitations has run. Id. at 713. Additionally, this statute anticipates that victims may know they are suffering some emotional harm but not be able to understand the connection between these symptoms and the abuse. B.R. v. Horsley, 186 Wn.App. 294, 299 (2015).
In order for RCW 4.16.340 to apply, intentional sexual abuse must be the predicate conduct or foundation of the claim. C.J.C, 138 Wn.2d at 709. However, RCW 4.16.340 encompasses other state law claims against parties who did not themselves directly perpetrate the childhood sexual abuse. Id. at 714.
Section (1)(b) applies to repressed memory claims where the victim discovers that the injury was caused by a previously undiscovered act. Hollmann v. Corcoran, 89 Wn.App. 323, 334 (1997). Section (1)(c) applies to “the discovery of the causal connection between a known act and subsequent injuries including injuries that develop years later.” Id. Both sections apply a subjective standard, based on when the victim in fact discovers the causal connection between the defendants' act and the injuries. Id. The defendant bears the burden of proving that the plaintiff actually discovered the causal connection between the act and the injuries beyond the three-year statute of limitations. Korst v. McMahon, 136 Wn.App. 202, 208 (2006).
Based on the evidence in the record, genuine questions of fact remain regarding when plaintiff actually discovered the causal connection between craigslist's conduct and her subsequent injury.
a. A. T. v. Everett Sch. Dist.
Here, defendant cites to the case A.T. v. Everett Sch. Dist., 300 F.Supp.3d 1243 (W.D. W.A., 2018) to support their position that plaintiff's claims occurring before her eighteenth birthday are untimely. Dkt. 180. In A.T., the plaintiff was the victim of sexual abuse by a teacher at the high school that A.T. attended. 300 F.Supp.3d at 1247-1249. In 2009, A.T. began therapy and in 2010 told a therapist that they felt guilty about the relationship with the teacher. Id. at 1249. A.T.'s therapist diagnosed A.T. with Adjustment Disorder with Mixed Anxiety and Depressed Mood. Id. While attending a graduate program in 2012, A.T. began journaling extensively about the relationship, writing that they felt damaged by the relationship and the grief it caused them. Id. During this time A.T. stated that they called the teacher and “let loose a flood of [..] feelings and hurt and shame about everything ... about wanting to kill [themself], about feeling like [A.T.] had zero integrity ... and that [A.T.] felt groomed and manipulated.” Id.
Later that year, A.T. went to university counseling, reporting that they had only recently allowed themself to think about the relationship as harmful and admitting that was incredibly painful. A.T., 300 F.Supp.3d at 1249. In 2013, A.T. sought therapy at a different university and reported that they were concerned about anxiety, fear, nervousness, depression, sexual abuse and assault. Id.
In 2015, A.T. went to a job fair to consider becoming a teacher and reported suffering a panic attack and this was the moment they realized they had suffered actual psychological injury from the relationship with the teacher. A.T., 300 F.Supp.3d at 1250. In 2016, A.T. saw a primary care physician and was diagnosed with Posttraumatic Stress Disorder for the first time. Id.
In 2016, A.T. filed a lawsuit against the teacher who had sexually abused them and the school district with an effective filing date of October 22, 2016. A. T., 300 F.Supp.3d at 1251, 1253. The defendants filed a motion to dismiss A.T.'s complaint as barred by the statute of limitations. Id. The Court determined that RCW 4.16.340 applied to the action because a reasonable jury could decide that the sexual contact commenced before plaintiff turned eighteen years of age. Id. at 1254-55.
A.T. argued that the complaint was timely under RCW 4.16.340(1)(c) because they did not make the causal connection between the teacher's acts and their injuries until the 2015 job fair. A.T., 300 F.Supp.3d at 1255. The Court acknowledged that the 2016 diagnosis of PTSD differed from the prior diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. Id. at 1256. However, the Court explained that the analysis under RCW 4.16.340(1)(c) concerns the injury or the problems associated with a diagnosis, not necessarily the diagnosis itself. Id.
The Court ruled that the symptoms that plaintiff associated with their PTSD diagnosis, namely anxiety and hypervigilance, were the same symptoms for which they received a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood in 2010. A.T., 300 F.Supp.3d at 1256. Additionally, the Court noted that plaintiff reported that their symptoms reached a peak in 2012, well before their PTSD diagnosis. A.T., 300 F.Supp.3d at 1256-57. Accordingly, the Court ruled that the PTSD was not a qualitatively different injury than the injury A.T. was previously aware of. Id.
Next, the Court ruled that that the evidence showed A.T. associated their injuries with the sexual abuse from their teacher at the latest in May of 2013. A.T., 300 F.Supp.3d at 1257. Specifically, the Court noted that A.T. had journaled about the injury that the relationship caused, and had expressed the complained of injury to three different therapists before May 2013. Id. Accordingly, the Court granted the motion to dismiss and dismissed A.T.'s state law claims as untimely under RCW 4.16.340(1)(c). Id. at 1258.
A.T. appealed the Court's decisions and the Ninth Circuit Court of Appeals affirmed the grant of summary judgment. A. T. v. Everett Sch. Dist., 794 Fed.Appx. 601 (9th Cir. 2019). The Ninth Circuit held that A.T. connected their injuries to the sexual abuse by at least May 2013, noting that A.T. discussed the harm in 2006, was diagnosed with the alleged injuries in 2010, and associated the injuries to the sexual abuse in therapy in 2012. Id. at 603.
b. Plaintiffs Claims
Here, plaintiffs situation is factually distinguishable from the situation the Court considered in A.T.. In A.T., the evidence in record showed that plaintiff acknowledged the injury caused by the abuse in their journals and connected the injury to the abuse in therapy well before the three year statute of limitations set.forth in RCW 4.16.340(1)(c). In the present case, it is not clear from the record that plaintiff connected her injuries to craigslist's conduct before 2017.
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Plaintiff is alleging that craigslist knowingly facilitated, allowed and profited from her trafficker's venture. Accordingly, the relevant inquiry with regards to plaintiff's claims against craigslist is when plaintiff discovered the connection between her alleged injuries and craigslist's alleged conduct. Unlike the case in A.T., the record does not definitively state when plaintiff made this causal connection. Accordingly, a finder of fact would need to weigh the evidence in the record, decide credibility and determine disputes of fact in order to determine when plaintiff connected her harm to craigslist's conduct. This is a function of a jury that the Court cannot decide.
Based on the foregoing, questions of fact remain regarding whether plaintiff timely filed her claims relating to conduct occurring before her eighteenth birthday. Therefore, the Court should deny craigslist's motion for summary judgment on plaintiffs claims related to conduct occurring before her eighteenth birthday.
4. Washington Criminal Profiteering Act
The Court should deny both motions for summary judgment on plaintiffs Criminal Profiteering Act claims.
Pursuant to RCW 9A.82.100, the statute of limitation for a claim under the Criminal Profiteering Act is “three years after the discovery of the pattern of criminal profiteering activity or after the pattern should reasonably have been discovered.” RCW 9A.82.100(7). In the case of a claim based on trafficking, as defined by RCW 9A.40.100, the statute of limitations is three years from the discovery of the pattern of criminal profiteering activity or the final disposition of any criminal charges relating to the offense, whichever is later. Id.
An act of “criminal profiteering” requires the commission of specific enumerated felonies for financial gain. RCW 9A.82.010(4). The enumerated felonies that can support a claim for criminal profiteering include: (x) “sexual exploitation of children as defined in RCW 9.68A.040, 9.68A.050, and 9.68A.060;” (y) “promoting prostitution, as defined in RCW 9A.88.70 and 9A.88.080;” (rr) “commercial sexual abuse of a minor, as defined in RCW9.68A.100;” and (tt) “Trafficking, as defined in RCW9A.40.100, promoting travel for commercial sexual abuse of a minor as defined in RCW 9.68A.102, and permitting commercial sexual abuse of a minor, as defined in RCW 9.68A.103.” RCW 9A.82.010(4), RCW 9A.82.100(1)(a).
A “pattern of criminal profiteering” is defined as three or more acts of criminal profiteering occurring within a five-year period after the commission of the earliest act of criminal profiteering. RCW 9A.82.010(12); Robertson v. GMAC Mortg. LLC, 982 F.Supp.2d 1202, 1209 (W.D. Wash. 2013). To constitute a pattern “the three acts must have the same or similar intent, results, accomplices, principals, victims, or methods of commission, or be otherwise interrelated by distinguishing characteristics including a nexus to the same enterprise, and must not be isolated events.” RCW 9A.82.010(12).
Plaintiff alleges that defendants knowingly facilitated, permitted, participated in and profited from the criminal enterprise that trafficked plaintiff. To timely bring a cause of action under the Criminal Profiteering Act, plaintiff needed to bring her action within three years after discovery, or the time she should have reasonably discovered, this alleged pattern of criminal profiteering activity. It is unclear from the record when plaintiff discovered the facts that she now alleges, specifically that the defendants knowingly participated in, facilitated, permitted, and profited from the conduct of her traffickers.
Additionally, as has been discussed, if the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in her favor, a jury could find that plaintiff could not have reasonably discovered these facts until 2017.
Based on the foregoing discussion, questions of fact remain regarding when plaintiff discovered the alleged pattern of criminal profiteering activity, and when plaintiff could reasonably have discovered these facts. Therefore, summary judgment on this issue is inappropriate at this time. The undersigned recommends that the Court deny both motions for summary judgment on plaintiffs Criminal Profiteering Act claims.
5. Sexual Exploitation of Children Act
As the Court explained in the previous Report and Recommendation (Dkt. 62), the Sexual Exploitation of Children Act does not create a private right of action under which plaintiff can bring an independent claim. RCW 9.68A.011, .040, .050, .060, .070, .075, .090. Rather, RCW 9.68A.130, entitles a minor to recover an award of costs and attorney fees if the minor prevails on a tort claim and establishes - by facts determined by a jury - that the conduct underlying the tort claims in the civil action would also constitute a violation of a specific provision of RCW 9.68A. Furnstahl v. Barr, 197 Wn.App. 168, 173 (2016).
The recovery of costs and attorney fees under RCW 9.68A.130 is limited to conduct against people under the age of eighteen. RCW 9.68A.011 (5) (defining “minor” as any person under eighteen years of age). Therefore, plaintiffs claims for attorney fees and costs pursuant to RCW 9.68A.103 should be limited to plaintiffs claims based on conduct occurring before plaintiff's eighteenth birthday.
CONCLUSION
Based on the foregoing discussion, the undersigned recommends that the Court GRANT IN PART and DENY IN PART 2005 Investors LLC's Motion for Partial
Summary Judgment (Dkt. 173, Dkt. 179 (Sealed)) and DENY craigslist's Motion for Partial Summary Judgment (Dkt. 175, Dkt. 180 (Sealed)). The Court should Order:
• Plaintiff's financial benefit claims under the TVPRA are limited to conduct occurring after December 23, 2008.
• Plaintiff's claim for attorney fees and costs pursuant to RCW 9.68A.130 are limited to the claims based on conduct occurring before plaintiff's eighteenth birthday.
• Plaintiff's claims against 2005 Investors LLC based on conduct allegedly occurring at Howard Johnson after August 31, 2015 are dismissed with prejudice.
• Plaintiff's remaining claims may continue in this litigation.
The parties have fourteen (14) days from service of this Report and Recommendation to file written objections thereto. 28 U.S.C. § 636(b)(1); FRCP 6; FRCP 72(b)(2). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). If objections are filed, the parties shall have fourteen (14) days from the service of the objections to file a response. FRCP 72(b)(2). Accommodating this time limitation, this matter shall be set for consideration on October 8, 2021, as noted in the caption.