ARDOLF v. WEBER (2019)

MEMORANDUM DECISION AND ORDER

Plaintiffs bring this action against Defendant Bruce Weber for violations of the Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. § 1591, under which a civil private right of action exists, 18 U.S.C. § 1595. Plaintiffs allege that Defendant used his power in the male modeling industry to fraudulently entice and forcefully engage them into abusive commercial sex acts.

Defendant moves to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6). Alternatively, Defendant moves to sever Plaintiffs' claims under Federal Rule of Civil Procedure 21. Defendant's motions are DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND 1

Plaintiffs allege that Defendant “was the most powerful and influential fashion photographer in the male modeling industry.” (First Am. Compl. (“FAC”), ECF No. 36, ¶ 12.) He was “hired by magazines, designers, brands, and other clients to manage and control the entire casting process and directing of photoshoots and other modeling campaigns.” (Id. ¶ 14.) Given his prominence and popularity, aspiring male models coveted a spot in Defendant's photoshoots, including test photoshoots. (Id. ¶¶ 18, 22.) A photoshoot of any kind with Defendant would, at the very least, result in “Bruce Weber photographs” that a male model could use in his “book,” or even better, a feature in a famous fashion magazine like Vogue or GQ, or a modeling campaign with a famous brand like Ralph Lauren or Abercombie & Fitch. (Id. ¶¶ 21–22.) Plaintiffs were aspiring male models who posed for Defendant's photoshoots from the fall of 2008 to the early spring of 2011. (Id. ¶¶ 23–83.)

According to Plaintiffs, Defendant sexually molested them during these photoshoots. They claim that he had a modus operandi. (Id. ¶¶ 26, 34, 47.) First, Defendant would recruit and entice Plaintiffs by booking them as models for his photoshoots, including test photoshoots and photoshoots for fashion advertising campaigns and magazine editorials.² (Id. ¶¶ 25, 31, 46, 50, 58, 72, 73.) At the photoshoots, Defendant would find a way to be alone with Plaintiffs to engage “in a fraudulent breathing exercise,” during which he sexually molested Plaintiffs by forcibly touching and grabbing different parts of their bodies, including their genitals. (Id. ¶¶ 26, 34, 38–39, 47, 52, 60–63, 66, 72, 73.) As the molestation took place, Defendant made comments clearly insinuating that, if Plaintiffs allowed him to molest them, he would use his power and influence in the fashion industry to help their modeling careers. (Id. ¶¶ 27, 43, 48, 53, 64, 67–68, 72, 73.) For example, Defendant would suggest that he could book Plaintiffs for his upcoming photoshoots, and that with his help they could “go very far” in the modeling industry. (Id.) On one occasion, he even threatened to book another model for the photoshoot that Plaintiff was modeling for at the time. (Id. ¶¶ 35, 44.)

As a result of Defendant's actions, Plaintiffs allegedly suffer from a myriad of psychological disorders, namely, depression, anxiety, flashbacks, nightmares, substance abuse, PTSD, “difficulty in personal relationships, and general loss of enjoyment of life.” (Id. ¶¶ 75–83.) Furthermore, two of the Plaintiffs ended their modeling careers out of fear that they would again suffer from sexual abuse while working in the fashion industry. (Id. ¶¶ 78, 83.)

On December 21, 2018, Plaintiffs filed an anonymous complaint. (Compl., ECF No. 1.) On January 29, 2019, this Court ordered Plaintiffs to file an amended complaint with their full legal names no later than March 31, 2019. (Order, ECF No. 21.)³ Defendant moved to dismiss the complaint on March 1, 2019. (Mot. to Dismiss, ECF No. 24.) Plaintiffs filed an amended complaint with their full names, in compliance with this Court's Order, on April 2, 2019. (FAC.) On May 3, 2019, while his motion to dismiss was still pending, Defendant moved to sever Plaintiffs' claims. (Mot. for Severance of Pls.' Claims, ECF No. 46.)

II. LEGAL STANDARDS

1. Motion to Dismiss for Failure to State a Claim.

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Brown v. Daikin Am. Inc., 756 F.3d 219, 225 (2d Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). While “the plausibility standard is not akin to a probability requirement,” id. (internal quotation marks omitted), the plaintiff must “nudge[ ] [his] claims across the line from conceivable to plausible[,]” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A court must take “factual allegations [in the complaint] to be true and draw [ ] all reasonable inferences in the plaintiff's favor.” Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009) (citation omitted). Legal conclusions, conversely, do not benefit from a presumption of truth. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

A district court can first review a plaintiff's complaint to identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. 1937. The court then considers whether plaintiff's remaining well-pleaded factual allegations, assumed to be true, “plausibly give rise to an entitlement to relief.” Id.; see also Targum v. Citrin Cooperman & Co., LLP, No. 12 Civ. 6909 (SAS), 2013 WL 6087400, at *3 (S.D.N.Y. Nov. 19, 2013). In deciding a Rule 12(b)(6) motion, the court also draws all reasonable inferences in the non-moving party's favor. See N.J. Carpenters Health Fund v. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 119–20 (2d Cir. 2013).

2. Sex Trafficking Under The TVPA.

The TVPA holds criminally liable “whoever knowingly in or affecting interstate or foreign commerce,” (1) “recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person,” (2) “knowing ․ that means of force, threats of force, fraud, coercion ․ or any combination of such means will be used,” (3) “to cause the person to engage in a commercial sex act․” 18 U.S.C. § 1591(a)(1). “[C]ommercial sex act” is defined under the statute as “any sex act, on account of which anything of value is given to or received by any person.” Id. § 1591(e)(3). In 2003, Congress amended and expanded the TVPA to create a civil private right of action for victims of the same conduct.⁴ Id. § 1595.

III. DEFENDANT'S MOTION TO DISMISS IS DENIED

Defendant insists that he is not liable under the TVPA because the allegations against him do not fit the purpose or language of § 1591. (Mem. of Law in Supp. Of Def.'s Mot. to Dismiss Pls.' Compl. (“MTD Mem.”), ECF No. 25, at 3.) According to Defendant, § 1591 only covers “real sex trafficking and modern-day sexual slavery,” which he defines as “the illicit sex trade and human trafficking for commercial gain.” (MTD Mem. at 1, 4.) Even though this law has been traditionally used to prosecute the types of sex trafficking that Defendant describes, that does not mean that it only applies in those circumstances. In fact, since the rise of the #MeToo movement, victims of “casting couch” sexual abuse and assault increasingly rely on the TVPA to prosecute alleged perpetrators such as Hollywood movie mogul Harvey Weinstein. See, e.g. Geiss v. Weinstein Co. Holdings, LLC, 383 F.Supp.3d 156, 167–68 (S.D.N.Y. 2019) (finding that actresses plausibly alleged that Weinstein enticed them to engage in commercial sex acts, in violation of § 1591, using promises of career advancement); Canosa v. Ziff, No. 18 Civ. 4115 (PAE), 2019 WL 498865, at *23 (S.D.N.Y. Jan. 28, 2019) (finding that a young producer's allegations that Weinstein sexually abused and harassed her under the false pretense of conducting business meetings and promoting her career “comfortably falls within the scope of the TVPA”); Noble v. Weinstein, 335 F. Supp. 3d 504, 515 (S.D.N.Y. 2018) (finding that actress plausibly alleged that Weinstein violated § 1591 when he “employed both fraud and physical force to cause [her] to engage in a sex act with him,” even though her claim “is not an archetypal sex trafficking action.”). Other courts in this district have found that this broad interpretation of the TVPA is appropriate. See Geiss, 383 F.Supp.3d at 168 (“the TVPA extends to enticement of victims by means of fraudulent promises of career advancement, for the purpose of engaging them in consensual or, as alleged here, non-consensual sexual activity”); Canosa, 2019 WL 498865, at *23 (“[Defendants'] attempt to cabin the TVPA to reach only caricatures of child slavery, and to exclude corporate-supported conduct, is wholly unpersuasive. The text of the TVPA does not provide any charter for this self-serving distinction.”); Noble, 335 F. Supp. 3d at 515 (S.D.N. Y. 2018) (“The remedial provision at issue, Section 1595, which permits actions for damages under Section 1591, requires broad interpretation.”).

Here, Plaintiffs' plausibly allege that Defendant violated § 1591 by knowingly recruiting and enticing them to engage in commercial sex acts using fraud and force during his photoshoots.

1. Defendant Allegedly Enticed and Recruited Plaintiffs.

The TVPA does not define the terms “entice” or “recruit” in § 1591(a). Where a term is undefined in a statute, Courts will “normally construe it in accord with its ordinary or natural meaning.” Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012) (citing Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993)) (defining the term “settled” according to its ordinary meaning); see also U.S. v. Gagliardi, 506 F.3d 140, 147 (2d Cir. 2007) (“The words ‘attempt,’ ‘persuade,’ ‘induce,’ ‘entice,’ or ‘coerce,’ though not defined in the statute, are words of common usage that have plain and ordinary meanings.”) (emphasis added) (citations omitted). In this regard, the use of the term “entice” in the TVPA means that the perpetrator attracts the victim by offering something that arouses hope or desire. See Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/entice (last visited June 15, 2019) (defining “entice” as “to attract artfully or adroitly or by arousing hope or desire.”) (emphasis added); Noble, 335 F. Supp. 3d at 517 (same). Similarly, the term “recruit” in the TVPA means that the perpetrator somehow secured the services of the victims. See Recruit, Merriam-Webster Online Dictionary, https://www.merriam.webster.com/dictionary/recruit (last visited June 17, 2019) (defining “recruit” as “to secure the services of”); Noble, 335 F. Supp. 3d at 517, n. 6 (same).

Plaintiffs plausibly allege that Defendant “enticed” and “recruited” them under the plain and ordinary meaning of those terms. Each Plaintiff alleges that Defendant invited him to one of Defendant's photoshoot, (FAC ¶¶ 25, 31, 32, 46, 58, 72.) Plaintiffs knew that “[m]ajor brands and magazines in the industry delegated complete power and control over the modeling shoots to [Defendant], which included deciding which models were invited for an audition, and which models were ultimately chosen for each campaign.” (Id. ¶ 15.) In other words, Plaintiffs maintain that Defendant had the power and influence to hire them as models for future advertising campaigns, fashion magazine editorials, and other lucrative modeling jobs. (Id. ¶¶ 13, 16, 17, 18, 22, 101.) Even if Defendant did not hire Plaintiffs in the future, participating in the photoshoots “would at the very least result in Bruce Weber photographs that [they] could use in their book.”⁵ (Id. ¶ 21.) Therefore, an invitation to a photoshoot with Defendant “was the ultimate opportunity and carried enormous value” for aspiring models. (Id. ¶ 97.) Given this context, Plaintiffs plausibly allege that, because they were aspiring models, Defendant's photoshoot invitations and opportunities aroused in them a hope and desire for success in their modeling careers. (Id. ¶¶ 25, 33, 51, 58, 61, 72, 73, 85, 100.)

Plaintiffs also plausibly allege that Defendant “recruited” them, because he “secured their services” as models by booking them for his photoshoots. (Id. ¶ 25, 32, 50, 55, 62, 72, 73.) See Noble, 335 F. Supp. 3d at 517 n. 6 (plaintiff's allegations are most likely sufficient to plead that Weinstein “recruited” her because he asked her to provide services as an actress).

Defendant argues that he did not “entice” Plaintiffs because, unlike Weinstein in Noble, he did not lure them to his photoshoots through “extraordinary, specific, repeated, and persistent acts.” (MTD Mem. at 5.) But there is no legal authority for Defendant's proposition that Plaintiffs must plead “substantial and specific promises designed to arouse specific kinds of hopes and expectations.” (Id.) Sufficiently, a defendant is liable under the TVPA for a single act of enticement or recruitment if it is successful. For example, many of the plaintiffs in Geiss alleged that Weinstein only approached them once with a false promise of a movie role, or a business meeting, before he assaulted them. See 383 F.Supp.3d at 162–66.

Accordingly, Plaintiffs plausibly allege that Defendant “enticed” and “recruited” them for purposes of § 1591 by inviting them to participate in his coveted photoshoots and other opportunities.

2. Defendant Knew He Would Use Fraud and Force.

The TVPA requires Plaintiffs to plausibly allege that Defendant enticed them knowing ⁶ that he would use fraud or force to cause a commercial sex act to take place. See Noble, 335 F. Supp. 3d. at 517–18 (citing United States v. Todd, 627 F.3d 329, 333–34 (9th Cir. 2010)) (the TVPA “requires the pleader allege awareness, at the initial recruitment or enticement stage, that certain prohibited means will be employed to achieve a perverse end goal: a commercial sex act.”). One way of pleading this knowledge is by alleging that Defendant engaged in a modus operandi, such that he knew that he had a pattern of using fraud or force to cause commercial sex acts with victims. See Todd, 627 F.3d at 334 (“[w]hat the statute means to describe ․ awkwardly, is a state of mind in which the knower is familiar with a pattern of conduct.”).

Here, Plaintiffs specifically allege that Defendant knew that he had a modus operandi of using fraud to cause a commercial sex act with male models. (FAC ¶ 88.) The TVPA does not define “fraud,” but this Court is very familiar with the plain and ordinary meaning of that term at common law: “a knowing misrepresentation ․ of a material fact made to induce another to act to his or her detriment.” Fraud, Black Law's Dictionary (10th Ed. 2014); see also Fraud, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/fraud (last visited June 17, 2019) (defining “fraud” as “intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right.”).

Here, Defendant's modus operandi for fraud consisted of “[making] fraudulent promises and offers of career success to convince Plaintiffs to allow the molestation to take place and/or to believe that the molestation was part of the modeling process.” (FAC ¶ 88.) For example, as the molestation took place, Defendant told Plaintiffs that he had upcoming photoshoots for which he wanted to hire them. (Id. ¶¶ 27, 73.) Similarly, as he molested another, Defendant said: “just relax and you'll go far in this industry ․ you just need a little help from me.” (Id. ¶¶ 48, 53.) On another occasion, Defendant asked “how far are you willing to go? ․ do you want to be a big model?” before stating that Plaintiff “just needed to let loose if he wanted to make it to the top.” (Id. ¶¶ 64, 67.) Defendant also threatened to hire other models for the photoshoot if Plaintiff did not allow Defendant to molest him. (Id. ¶ 35.) These allegations demonstrate that Plaintiffs reasonably understood these promises and threats to mean that Defendant would book them for future modeling jobs if they allowed him to molest them.

Plaintiffs also allege that Defendant's modus operandi involved requiring that his models engage in a “breathing exercise” to relax and take better pictures, when in fact the purpose of the exercise was to sexually fondle them. (Id. ¶¶ 86, 87, 102.) Defendant allegedly convinced Plaintiffs to engage in these fraudulent “breathing exercises,” during which he sexually grabbed and fondled several parts of their body, including their genitals. (Id. ¶¶ 26, 34, 47, 52, 62, 72, 73.) Plaintiffs agreed to the fraudulent “breathing exercises” because “they believed they had to engage in these practices in order to not look ‘tense’ for the photoshoot, and/or to succeed professionally.” (Id. ¶ 90.)

Assuming Plaintiffs' allegations of Defendant's modus operandi to be true, they plausibly allege that Defendant knew, when he enticed and recruited Plaintiffs to pose for his photoshoots, that he would use empty career promises and fraudulent “breathing exercises” to convince them to allow the molestation to take place. (Id. ¶ 88.)

Plaintiffs also allege that Defendant knew he would use force to sexually fondle them. Again, because the TVPA does not define “force,” this Court uses the plain and ordinary meaning of that term. Lozano, 697 F.3d at 56. In this case, defendant used “force” if he exerted energy or strength and caused a motion or change. See Force, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/force (last visited June 15, 2019) (defining “force” as “strength or energy exerted or brought to bear; cause of motion or change.”) Plaintiffs' allegations fit this definition because they allege that Defendant exerted energy or strength to move his hands underneath their clothes in order to grab and fondle their genitals during the breathing exercises. (FAC ¶¶ 26, 39, 52, 55, 66, 89, 91, 94.) Therefore, the allegations that Defendant grabbed and fondled Plaintiffs' genitals underneath their clothes, taken as true, are sufficient at the pleading stage to allege a modus operandi of using force.

Defendant argues that the complaint does not allege that he used force because it does not claim that he engaged Plaintiffs “by strength in a struggle or violence.” (MTD Mem. at 10 (citing Force, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/force (last visited June 15, 2019).) However, § 1591 refers to the noun “force,” not the verb “to force.” More importantly, the text of the statute does not require violence. In fact, if Congress intended for victims to allege violence, it would have used that term. See BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (“The preeminent canon of statutory interpretation requires us to ‘presume that the legislature says in a statute what it means and means in a statute what it says there.’ Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous.” (citations omitted)); Conn. Nat. Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others ․ [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says.”). Instead, Congress used the noun “force,” which means the exertion of strength or energy. Defendant had to exert strength or energy to get his hands under Plaintiffs' pants. Therefore, Plaintiffs plausibly allege that Defendant used force to sexually molest them.

3. Defendant's Fraud or Force Caused a Commercial Sex Act.

A commercial sex act need not occur for a Defendant to be liable under § 1591. United States v. Alvarez, 601 F. App'x 16, 18 (2d Cir. 2015) (finding that because § 1591 employs “the future tense,” “the [sex act] itself is not an element of the offense.”); United States v. Maynes, 880 F.3d 110, 114 (4th Cir. 2018) (“the crime is complete when the defendant recruits, entices, harbors, etc. the victim with knowledge that the prohibited means will be used in the future to cause them to engage in commercial sex acts.”). Because a sex act is alleged to have occurred in this case, however, this Court evaluates whether Defendant intended, or was aware, “that the fraud and force would cause a sex act to take place.” Noble, 335 F. Supp. 3d at 519.

Regarding fraud, the question is whether Defendant made material misstatements that he knew a reasonable plaintiff would rely on. Id. (“Tied up in this inquiry is whether the statements made by Defendant were material—that is, important enough to a reasonable plaintiff to be relied upon.”); Maynes, 880 F.3d at 114 (“[F]or any fraud to be relevant to the question of guilt [under § 1591], it must have been fraud that ‘would be used to cause that person to engage in a commercial sex act.’ ”) (citations omitted). Defendant argues that the alleged fraudulent career promises and breathing exercises were not material because they were “puffery or non-specific, vague promises or expectations of what may take place in the future.” (MTD Mem. at 8–9.) To the contrary, Defendant's promises of career advancement were undoubtedly material because he was very powerful and influential in the fashion industry, so it was perfectly reasonable for aspiring male models to rely on them. See Noble, 335 F. Supp. 3d at 520 (“It is not just what Harvey [Weinstein] said that supports an inference of fraud. The context and history of their professional relationship imports a degree of legitimacy, of materiality, to the statements.”).

It was equally reasonable for Plaintiffs to believe Defendant when he instructed them to engage in a “breathing exercise” to take better photographs. After all, he was a renowned photographer, and it was their job as aspiring models to follow his instructions. Furthermore, Plaintiffs plausibly allege that Defendant's career promises and fraudulent “breathing exercises” were material to his violation because they were not “made for a reason other than to bring about the [sexual molestation].” Id. at 519. Accordingly, Plaintiffs' well-pleaded allegations, read as a whole, support a finding that Defendant made material misstatements on which he knew Plaintiffs would rely. Id. at 520 (citing Pension Ben. Guar. Corp. v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 732 (2d Cir. 2013) (“Reading the Amended Complaint as a whole, that [Weinstein] did not specify the film he had ‘in mind’ for Noble does not render her allegations implausible.”).

Defendant also maintains that his career promises were not fraudulent because when he allegedly sexually molested Plaintiffs, he intended to help them with their careers. (MTD Mem. at 10, 20–21, 26–27, 28.) In fact, Defendant argues that he even followed through on his promises to book and feature Plaintiffs in fashion advertising campaigns for famous clients. (Id. at 22, 24.) But even if Defendant honored all of his promises of career advancement to Plaintiffs, they would still be fraudulent because the fraud lies in the idea that Plaintiffs had to allow Defendant to sexually molest them to get the career advancement opportunities. See Canosa, 2019 WL 498865 at *23 (finding that Weinstein used fraud even though he followed through on some of his promises, discussing career opportunities with the plaintiff and even hiring her to work as a producer on a television series affiliated with his Company). This is clearly a misrepresentation of fact, as surely many models book fashion advertising campaigns and magazine editorials without having to subject themselves to activities that allow photographers to sexually molest them.

Regarding force, it is obvious that Defendant knew that he would push his hands underneath Plaintiffs' clothes in order to grab and fondle their genitals. He does not—indeed cannot—argue otherwise. Accordingly, Plaintiffs also plead sufficient facts to plausibly allege that Defendant knew he would use force to sexually molest them by shoving his hands under their pants to grab and fondle their genitals.

4. Defendant Engaged in a Commercial Sex Act.

Congress defines “commercial sex act” as “any sex act on account of which anything of value is given to or received by any person.” 18 U.S.C. § 1591(e)(3) (emphasis added), Defendant argues that it is not alleged that he engaged in a “commercial sex act” by sexually molesting Plaintiffs because fondling and grabbing Plaintiffs' genitals (1) is not a “sex act,” and (2) is not commercial in nature. (MTD Mem. at 11–20.)

a. Grabbing and Fondling Genitals Is a Sex Act.

The term “any sex act” is not defined in § 1591. This Court therefore relies on its plain and ordinary meaning. Defendant is alleged to have engaged in a “sex act” because he allegedly grabbed and fondled Plaintiffs' genitals for his sexual gratification. (FAC ¶¶ 87, 93, 102.) See Sex Act, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/sex% 20act (last visited June 17, 2019) (defining “sex act” as “an act performed with another for sexual gratification); Fondle, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/fondle (last visited June 17, 2019) (defining “fondle” as “to touch (someone or something) sexually.”) (emphasis added); Sex Act, Black's Law Dictionary (10th Ed.) (defining “sex act” as “sexual relations,” which “usually involve the touching of another's breast, vagina, penis, or anus.”) (emphasis added); Noble, 335 F. Supp. 3d at 522–23 (defining “sex act” under § 1591 as “an act performed with another for sexual gratification”); United States v. Bazar, 747 F. App'x 454, 456 (9th Cir. 2018) (same).

Defendant argues that this Court should disregard the plain and ordinary definition of the term “any sex act,” and instead use the definition of the term “sexual act” in 18 U.S.C. § 2246(2).⁷ There is no merit to this statutory interpretation analysis. See Noble, 335 F. Supp. 3d at 521–22. First, Defendant proposes the wrong term, because “sexual act” is not the same term as “sex act.” Second, § 2246 explicitly states that the definitions therein only apply to Chapter 109A of Title 18. Id. (“As used in this chapter ․”) (emphasis added). Therefore, the definition of “sexual act” in § 2246(2), by its own terms, does not apply to § 1591, which is in Chapter 77 of Title 18. See Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 86 (2d Cir. 2012) (citing Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003)) (“A particular statute's ‘plain meaning can best be understood by looking to the statutory scheme as a whole and placing the particular provision within the context of that statute.’ ”). Furthermore, the use of the modifier “any” signals Congress's intent to define “sex act” broadly to include “more than contact between, or penetration by, two sets of genitalia.” Noble, 335 F. Supp. 3d at 522 (collecting cases); see also Williams v. Taylor, 529 U.S. 362, 364, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“In light of the cardinal principle of statutory construction that courts must give effect, if possible, to every clause and word of a statute.”); Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 220, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) (“read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’ ”) (citations omitted).

Accordingly, grabbing and fondling Plaintiffs' genitals is a “sex act” under § 1591.

a. Defendant's Sex Act Was Commercial in Nature.

Defendant's alleged fondling of Plaintiffs' genitals was commercial in nature because he offered them valuable career advancement, including future modeling jobs, to allow it to happen. See Noble, 335 F. Supp. 3d at 521 (finding that the opportunity to meet a world-renowned film producer was, in and of itself, a thing of value for an aspiring actress); Geiss, 383 F.Supp.3d at 168 (finding that “something of value” includes “promises of career advancement”).

Defendant argues that his alleged sexual molestation of Plaintiffs was not “commercial” because he was not “entrapping and selling sex slaves to ‘Johns’ for profit.” (MTD Mem. at 12.) Surely, under Defendant's theory, he would be liable under § 1591(a)(2)—which prohibits “participation in a venture which has engaged” in sex trafficking—if he profited from fraudulently enticing or forcing Plaintiffs to engage in commercial sex acts with others. But the definition of “commercial sex act” in § 1591(e)(3) does not require the perpetrator of the force or fraud to profit from the sex act, because the “thing of value” can be “given to or received by any person,” including the victim. 18 U.S.C. § 1591(e)(3); see also Noble, 335 F. Supp. 3d at 521 (“Congress's use of expansive language in defining commercial sex act—using such terms as ․ ‘anything of value,’ ‘given to or received by any person’ requires a liberal reading.”). This purposefully broad definition allows perpetrators to be liable under § 1591(a)(1) for fraudulently enticing Plaintiffs or forcefully engaging them in commercial sex acts with the perpetrators themselves. See Lawson v. Rubin, No. 17 Civ. 6404 (BMC), 2018 WL 2012869 (E.D.N.Y. Apr. 29, 2018) (finding that defendant was liable under § 1591(a)(1) for fraudulently luring women to his New York City apartment where he sexually assaulted them in exchange for “modeling payments”); United States v. Flanders, 752 F.3d 1317, 1330 (11th Cir. 2014) (finding that defendants were liable under § 1591(a)(1) because they used fraud to recruit and entice the victims to engage in filmed sex acts with defendants). This is especially true in cases of “casting couch” sexual harassment, where the perpetrator of the commercial sex act is almost always the same person that is fraudulently enticing and recruiting the victims. See Geiss, 383 F.Supp.3d at 162–66 (finding that Weinstein was liable under § 1591(a)(1) for fraudulently and forcefully enticing young women in the film industry to engage in sex acts with him); Canosa, 2019 WL 498865, at *23 (same); Noble, 335 F. Supp. 3d at 520–23 (same).

Therefore, Defendant's alleged grabbing and fondling of Plaintiffs' genitals was a “commercial sex act” pursuant to § 1591(e)(3).

IV. DEFENDANT'S MOTION TO SEVER IS DENIED

“Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(1). “[B]oth criteria must be met for joinder to be proper” under the plain language of Rule 20. Wilson-Phillips v. Metro. Tramp. Auth., 18 Civ. 417 (VEC), 2018 WL 5981736, at *2 (S.D.N.Y. Nov. 14, 2018) (quoting Deskovic v. City of Peekskill, 673 F. Supp. 2d 154, 159 (S.D.N.Y. 2009)) (internal quotation marks omitted). The first requirement is satisfied if the court finds that “the essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.” Deskovic, 673 F. Supp. 2d at 166 (quoting United States v. Aquavella, 615 F.2d 12, 22 (2d Cir. 1979) (internal quotation marks omitted)). The second requirement is satisfied if the court finds that there is “substantial” overlap in questions of law or fact across the claims. See Wilson-Phillips, 2018 WL 5981736, at *2 (citing In re Blech Secs. Litig., No. 94 Civ. 7696, 2003 WL 1610775, at *13 (S.D.N.Y. March 26, 2003)).

If parties are not properly joined under Rule 20, a court may “drop a party” or “sever any claim against a party.” Fed R. Civ. P. 21. The court also has discretion to drop a party for any just reason, even if the claims are properly joined. See Kehr ex rel. Kehr v. Yamaha Motor Corp., U.S.A., 596 F. Supp. 2d 821, 826 (S.D.N.Y. 2008) (citing New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d Cir. 1988) (“The decision of whether to sever a claim is left to the discretion of the trial court.”). The Supreme Court has advised that “joinder of claims, parties, and remedies is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Indeed, “Federal courts view severance as a procedural device to be employed only in exceptional circumstances.” Kehr, 596 F. Supp. 2d at 826 (quoting Laureano v. Goord, No. 06 Civ. 7845 (SHS), 2007 WL 2826649, at *8 (S.D.N.Y. Aug. 31, 2007) (internal quotation marks omitted)). In deciding a motion to sever, courts in this district weigh the two requirements of Rule 20 and three additional factors: “(1) whether severance would serve judicial economy; (2) whether prejudice to the parties would be caused by severance; and (3) whether the claims involve different witnesses and evidence.” Id. (collecting cases).

Defendant's motion to sever is denied because Plaintiffs' claims are logically related and present substantially common questions of law and fact. Furthermore, all three discretionary factors disfavor severing because (1) severing Plaintiffs' claims would hinder judicial economy and efficiency, (2) denying severance would not result in any prejudice to either party, and (3) there is a large overlap of witnesses in Plaintiffs' cases.

1. Plaintiffs' Claims Arise Out of A “Series Of Transactions or Occurrences” Under Rule 20.

Federal Rule of Civil Procedure 13(a), which governs counterclaims, offers guidance on the construction of the terms “series of transactions or occurrences” in the context of Rule 20. See Kehr, 596 F. Supp. 2d at 826 (citing Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1421 (S.D.N.Y. 1989). The Supreme Court defines “transactions” in Rule 13(a) to mean “a series of many occurrences, depending not so much on the immediateness of their connection as upon their logical relationship.” Moore v. N. Y. Cotton Exch., 270 U.S. 593, 610, 46 S.Ct. 367, 70 L.Ed. 750 (1926). “Applying this reasoning to the terms used in Rule 20 ‘․ would permit all logically related claims by or against different parties to be tried in a single proceeding.’ ” Kehr, 596 F. Supp. 2d at 826 (citation and internal quotation marks omitted); See also Kalie v. Bank of America Corp., 297 F.R.D. 552, 557 (2013) (collecting cases applying the “logical relationship” test under Rule 20). Therefore, this Court must evaluate the logical relationship between Plaintiffs' claims to determine “whether the essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.” Id. (citing Aquavella, 615 F.2d at 22) (internal quotation marks omitted).

Plaintiffs' claims are logically related, in large part, because they are all against the same Defendant. See Kalie, 297 F.R.D. at 557 (“A separate barrier to joinder is presented by the presence of multiple defendant lenders.”). Defendant argues, however, that “the facts alleged by Plaintiffs are not shared or overlapping in any way.” (Mem. of Law in Supp. of Def.'s Mot. for Severance of Pls.' Claims Pursuant to Fed. R. Civ. P. 21 (“Severance Mem.”), ECF No. 48, at 8.) However, Plaintiffs allege that Defendant subjected them to the same modus operandi ⁸ to molest them. (Mem. of Law in Opp'n to Def.' Mot. for Severance of Pl.'s Claims, (“Severance Opp'n”), ECF No. 49, at 9.) Indeed, Defendant's modus operandi is the common thread that logically ties all Plaintiffs' claims.

Defendant's modus operandi is similar to the discriminatory employment policy and sexual harassment at issue in Blesedell. See 708 F. Supp. at 1421–22. In that case, three female employees of Mobil Oil accused the company of paying them less than their male counterparts in comparable positions, and of turning a blind eye to sexual harassment they separately suffered at the hands of the same male employees, including their supervisor. Id. at 1422. The court refused to sever plaintiffs' claims because “all of the plaintiffs allege that they had been injured by the same general policy of permitting discrimination against women.” Id. (citing Mosley v. Gen. Motors Corp., 497 F. 2d 1330, 1334 (8th Cir. 1974)). Here, like in Blesedell, Plaintiffs all allege that they were injured by the same behavior on the part of Defendant. Indeed, Defendant's modus operandi of molesting male models arises out of a series of the same transactions or occurrences with separate victims, each suffering from a nearly-identical violation of the TVPA. In other words, Defendant's modus operandi is what logically ties all of Plaintiffs' claims together.

Accordingly, Plaintiffs' claims are logically related and therefore arise out of a series of transactions or occurrences under Rule 20.

2. Plaintiffs' Claims Present Substantially Common Questions of Law and Fact.

All Plaintiffs raise a single cause of action: a violation of the TVPA. (FAC ¶¶ 84–104.) Therefore, “[a]t issue for all Plaintiffs is at least one common question of law: whether Defendant's modus operandi of fondling Plaintiffs' genitals during private photoshoots constitutes sex trafficking.” (Severance Opp'n at 5.) See Blesedell, 708 F. Supp. at 1422 (Title VII plaintiffs share at least one common question of law because “the discriminatory character of a defendant's conduct is common to each plaintiff's recovery”); Kehr, 596 F. Supp. 2d at 827 (“At the core of both [Plaintiffs'] claims is the question of whether the Yamaha Rhino's design was defective.”).

Defendant does not dispute that Plaintiffs share a common question of law, instead arguing that “there is no factual overlap, and each individual Plaintiff will require different evidence to prove his claim,” (Severance Mem. at 10.) On the contrary, Plaintiffs identify a deluge of legal and factual questions that are pertinent to Defendant's modus operandi, and therefore to all their claims. (Severance Opp'n at 6.) Surely, as Defendant points out, a trier of fact will also have to make factual determinations unique to each individual Plaintiff. (Severance Mem. at 3–6, 10–11.) “There is no requirement, however, that all questions of law and fact be identical in order for there to be permissive joinder under Rule 20(a). Indeed, the Rule provides for joinder as long as there is any question of fact common to all.” Kehr, 596 F. Supp. 2d at 827 (citing Blesedell, 708 F. Supp. at 1421) (emphasis in original). Plaintiffs in this action share much more than one common factual question, so joinder is proper.

Accordingly, all Plaintiffs in this case share substantial common questions of law and fact regarding Defendant's alleged modus operandi of molesting aspiring models, and potentially contravening the TVPA.

3. Severing Plaintiffs' Claims Would Hinder Judicial Economy and Efficiency.

Proceeding with Plaintiffs' claims in a single case would promote judicial economy and efficiency because “much of the discovery and depositions will be identical for [the] plaintiffs.” Kehr, 596 F. Supp. 2d at 828. For example, Plaintiffs' have identified thirteen (13) models (not parties to this case) in their initial disclosures who will allegedly testify that Defendant attempted to molest them during private photoshoots in the same way that he allegedly molested Plaintiffs. (Severance Mem. at 15; Severance Opp'n at 2.) Defendant has also identified fifteen (15) models in his initial disclosures that he believes will testify in his favor, disputing Plaintiffs' allegations of inappropriate touching. (Severance Mem. at 17; Severance Opp'n at 2.) Defendant has also identified at least four (4) employees of Little Bear, Inc. who will testify in his favor. (Severance Opp'n at 2.) These witnesses' testimony is obviously relevant to support or disprove the claims of each individual Plaintiff. Therefore, it “would surely be a waste of judicial resources” to sever Plaintiffs' claims, and have to depose all thirty-eight (38) witnesses (including Plaintiffs and Defendant) five times each. Kehr, 596 F. Supp. 2d at 828. It would also be inefficient to expect all of these non-party witnesses to unnecessarily appear at five separate trials.

Defendant argues that litigating all Plaintiffs' claims in one lawsuit would result in “a lengthier trial, fraught with confusing instructions to the jury, ․ endless curative instructions from the Court, and time spent wasted on complex legal issues related to each individual Plaintiff,” (Severance Mem. at 11.) Yet, the prospect of conducting five separate trials—with overlapping evidence and testimony—could be equally wasteful, if not worse. Similarly, Defendant also states, without offering any legal authority, that denying severance “would surely interfere with any potential settlement or negotiation as it would eliminate the possibility of settling with less than all five” Plaintiffs. (Id. at 12.) However, settlement is each party's choice, and whether to settle with some, or all, of the individual Plaintiffs is an available resolution, even if the Plaintiffs' join their claims.

Judicial economy and efficiency are served if Plaintiffs are allowed to proceed with their claims in one lawsuit against Defendant.

4. No Prejudice Will Result if Severance Is Denied.

Defendant argues that joining Plaintiffs' claims will “distract, confuse, and overwhelm the jury.” (Severance Mem. at 13.) According to Defendants, proceeding with all Plaintiffs' claims in one trial violates Federal Rule of Evidence 404(a)(1) because “[e]ven the strongest jury instruction cannot dull the impact of a parade of witnesses, each recounting his contention that Mr. Weber sexually touched him, regardless of the significant dissimilarities.” (Id.) However, jurors are perfectly capable of separating fact patterns that pertain to each individual Plaintiff, while understanding that they may have certain elements in common. Kehr, 596 F. Supp. 2d at 823 (“I am unconvinced that jurors will be unable to separate the different fact patterns presented by [individual Plaintiffs'] claims during trial or that trying the claims together will result in prejudice to either party.”).⁹

Finally, Defendant argues that he will be prejudiced if this Court denies his motion to sever because it will limit the amount of discovery available to him. (Severance Mem. at 14.) For example, under Federal Rules of Civil Procedure 32 and 33, he would only be allowed to take ten (10) depositions and submit twenty-five (25) interrogatories, as opposed to five times as many if Plaintiffs' claims are severed into five separate lawsuits. The solution to this speculative problem is not severance. Instead, as was explained during the May 7, 2019 oral argument, this Court will entertain a good-faith application from any party to expand the discovery limits beyond what the Federal Rules of Civil Procedure provide in the first instance, provided that said application articulates exactly how much more separate discovery is reasonably necessary. (Tr. of May 7, 2019 Oral Arg., ECF No. 52, at 155:13–158:11.) If more discovery is necessary, this Court will allow it.

Accordingly, denying Defendant's motion to sever will not result in prejudice to either party.

5. There is an Overlap of Witnesses and Documentary Proof In Plaintiffs' Cases.

There is significant overlap of at least thirty-two (32) witnesses in Plaintiffs' individual cases. Should this Court sever Plaintiffs' claims, these witnesses will have to be deposed and possibly called as witnesses at trial for each individual Plaintiff's case, needlessly quintuplicating the efforts of the parties, counsel, and this Court.

Thus, Plaintiffs have properly joined their claims under the TVPA against Defendant pursuant to Rule 20. Accordingly, Defendant's motion to sever pursuant to Rule 21 is DENIED.

V. CONCLUSION

Defendant's motion to dismiss the complaint, ECF No. 24, is DENIED. Defendant's motion to sever, ECF No. 46, is DENIED without prejudice. The Clerk of Court is instructed to close the motions.

SO ORDERED.

FOOTNOTES

2.   Krueger alleges that Defendant molested him in the fall of 2008 during an Abercrombie & Fitch photoshoot in Florida, and in the spring of 2010 during a private photoshoot in Defendant's private home/studio in Manhattan, New York. (FAC ¶¶ 45–56.) Madden alleges that Defendant molested him in July 2009 during an Abercrombie & Fitch photoshoot in Boston, Massachusetts. (Id. ¶¶ 57–69.) Baldwin alleges that Defendant molested him in the winter of 2009 during an Abercrombie & Fitch photoshoot in Florida (Id. ¶¶ 30–44.) Van Oijen alleges that Defendant molested him in 2009 during a photoshoot in Golden Beach, Oregon, and in 2010 during a private photoshoot in Defendant's home in Montauk, New York. (Id. ¶¶ 70–74.) Ardolf alleges that Defendant molested him in January 2011 during a French Vogue photoshoot in Miami, Florida. (Id. ¶¶ 23–29.)

3.   This Court considered the factors laid out by the Second Circuit in Sealed Plaintiff v. Sealed Defendant and determined that Plaintiffs could not maintain this action under pseudonyms. See 537 F.3d 185, 190 (2d Cir. 2008).

4.   “An individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator in an appropriate district court of the United States. The court may award actual damages, punitive damages, reasonable attorneys' fees, and other litigation costs reasonably incurred.” 18 U.S.C. § 1595(a) (effective Apr. 11, 2018) (emphasis added)

5.   Plaintiffs explain that a “book ․ is a portfolio of their photographs that they use as a résumé to show agents, photographers, and casting directors in order to get work.” (FAC ¶ 20.)

6.   The Noble court also refers to this knowledge as an “awareness” or “understanding.” Noble, 335 F. Supp. 3d. at 517–18.

7.   “As used in this chapter the term ‘sexual act’ means (A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or (D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”18 U.S.C. § 2246(2) (emphasis added).

8.   “Defendant's modus operandi with all five [Plaintiffs] was the same: Defendant [allegedly] enticed each Plaintiff to a private photoshoot and then led them through [ ] ‘breathing exercises,’ which he used as a ruse to fondle their genitals. Leading up to, and even during, the molestation, Defendant would make assurances of career success.” (Severance Opp'n at 9.)

9.   Defendant may renew his motion to sever prior to trial.

GEORGE B. DANIELS, United States District Judge: