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Burgese v. Starwood Hotels & Resorts Worldwide, Inc.

United States District Court, D. New Jersey

April 14, 2015


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[Copyrighted Material Omitted]

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For Plaintiffs: Lance Rogers, Rogers & Associates, LLC, Bryn Mawr, PA.

For Defendants: Jay A. Gebauer, Mark Gregory Materna, Post & Schell, PC, Princeton, NJ.

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[Dkt. Ent. 79]


This matter comes before the Court upon a partial motion to dismiss filed by Defendants 2201 Collins Fee, LLC (" 2201 Collins" ), Starwood Hotels & Resorts, Inc. (" Starwood" ), and W Hotel Management, Inc. (" W Hotel," and collectively the " Defendants" ). (Dkt. Ent. 79.) Defendants seek to dismiss Counts I and II of the Amended Complaint, which allege violations of the Florida Civil Remedies for Criminal Practices Act, Fla. Stat. § 772.101 et seq., Florida's equivalent of the federal Racketeer Influenced and Corrupt Organizations Act (" RICO" ).[1]

I. Factual Background

This matter arises out of an incident that occurred on January 19, 2013 while Plaintiffs Joseph and Anna Burgese (the " Plaintiffs" ) were guests of the W South Beach Hotel in Miami Beach, Florida. (Am. Compl. ¶ ¶ 8-10.) Plaintiffs regularly stayed at the W South Beach Hotel. (Id. at ¶ 9.) Plaintiffs allege that, on January 19, Plaintiffs were walking through the hotel lobby when Plaintiff Anna Burgese (" Ms. Burgese" ) " was the subject of an unprovoked, sudden, violent attack by an unknown number" of Jane Doe defendants. (Id. at ¶ 10.) Specifically, Ms. Burgese, " a petite lady," was tackled by a woman from behind " with such force that she flew out of her shoes" and " was driven face first into the stone floor," where her attacker[2] struck her repeatedly. (Id. at ¶ ¶ 11-14.) Plaintiffs further allege that Mr. Burgese sought the assistance of a hotel employee and demanded that the staff detain the attackers until the police could arrive. (Id.

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at ¶ 15.) Hotel staff allegedly informed Mr. Burgese they would do so and one employee purportedly stated that staff knew the assailant's identity. (See id. at ¶ ¶ 16-17.) Plaintiffs relied upon the hotel staff's assurances, and so " took no further action to pursue, identify or detain the attackers at that time." (Id. at ¶ 19.) Ms. Burgese apparently went to the hospital in an ambulance. (Id. at ¶ 23.)

According to the Amended Complaint, however, the staff assisted the attacker(s) with obtaining a taxi or taxis to facilitate their escape, and failed to identify them for either Plaintiffs or the police. (Id. at ¶ ¶ 21, 57.) Staff also later claimed not to know the identity of the attacker(s). (Id. at ¶ 20.) Consequently, the attacker(s) remain unidentified. (See id. at ¶ 22.) Despite the fact that the identity or even number of the attackers is unknown, Plaintiffs allege that their investigation revealed that they were prostitutes who " would have provided information that demonstrated Starwood and W Hotels [sic] complicity in the prostitution activity at the South Beach W." (Id. at ¶ ¶ 54-55.)

After Plaintiffs filed suit in May 2013, they and their agents undertook an investigation into prostitution activity at W Hotels in South Beach and New York, New York. (See id. at ¶ 27.) Plaintiffs allege that their investigation reveals that Starwood and W Hotels " welcome prostitutes into their hotels in order to entice wealthy customers to spend money on hotel services," informed employees that prostitutes were " welcome and good for business," and staff openly arrange meetings between prostitutes and guests. (See id. at ¶ ¶ 37, 38, 41, 45.) Plaintiffs further allege that management is aware of the prostitution activity and " manages it." (Id. at ¶ 45.) It is alleged that Starwood and W Hotels " not only tolerate[], but openly allow[] and promote[] prostitution" at their hotels (see, e.g., id. at ¶ ¶ 67, 72, 82), so as to " entice wealthy customers to spend money on hotel services, thus increasing corporate profits" (id. at ¶ 37).

II. Procedural Background

Plaintiffs commenced this action on May 28, 2013 against Defendants Starwood, 2201 Collins, and unnamed individuals who allegedly attacked Ms. Burgese. (Dkt. Ent. 1.) United States Magistrate Judge Ann Marie Donio subsequently scheduled a settlement conference for March 21, 2014, and ordered the parties to exchange settlement memoranda. (Dkt. Ent. 35.) On August 14, 2014, Judge Donio entered an amended scheduling order establishing an August 29, 2014 deadline for filing amended pleadings. (Dkt. Ent. 53.)

On August 29, 2014 Plaintiffs filed a motion for leave to file an amended complaint that included additional allegations discovered through an " investigation" that Plaintiffs undertook at other Starwood hotels subsequent to the filing of this matter. Defendants opposed the motion, arguing among other things that the proposed amended complaint contained " lurid, sensational and salacious allegations." In addition, Defendants argued that Plaintiffs had been using the anticipated negative publicity from these allegations to pressure Defendants into a higher settlement. (See Dkt. Ent. 58 at 3.) On September 30, 2014, this Court held a hearing on Plaintiffs' motion, and denied leave to amend but permitted Plaintiffs to file a second motion for leave to amend. (Dkt. Ent. 67.)

On October 14, 2014, Plaintiffs filed their second motion (Dkt. Ent. 70), which Defendants again opposed. The Court held a hearing on the second motion on November 3, 2014, and directed Plaintiffs to file a pared-down version of their amended complaint. They filed the instant Amended Complaint on November 7, 2014, setting forth causes of action for violations of the

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Florida RICO Act (Counts I and II), negligence (Count III), and loss of consortium (Count VI) against all defendants, premises liability (Count IV) against Starwood and 2201 Collins, and assault (Count V) against the unnamed defendants.

Defendants Starwood, W Hotel, and 2201 Collins have moved to dismiss the Florida RICO Act counts, Counts I and II.

III. Standard

To withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), " 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic 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." Id. at 663. " [A]n unadorned, the-defendant-unlawfully harmed-me accusation" does not suffice to survive a motion to dismiss. Id. at 678. " [A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).

In reviewing a plaintiff's allegations, the district court " must accept as true all well-pled factual allegations as well as all reasonable inferences that can be drawn from them, and construe those allegations in the light most favorable to the plaintiff." Bistrian v. Levi,696 F.3d 352 n.1 (3d Cir. 2012). Only the allegations in the complaint, and " matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case" are taken into consideration. Oshiver v. Levin, Fishbein, Sedran & Berman,38 F.3d 1380, 1384 ...

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