1 2 3 4 5 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT 13 SOUTHERN DISTRICT OF CALIFORNIA 14 15 “LILY,” “SARAH,” JANE ROE Case No.: 23-cv-00644-WQH-DEB as next friend for “PIA,” a minor, 16 ORDER 17 Plaintiffs, 18 v. 19 CARSTEN IGOR ROSENOW, 20 a/k/a CARLOS SENTA, Defendant. 21 22

23 HAYES, Judge: 24 The matters before the Court are the Motion to Dismiss the Complaint, Partial 25 Summary Dismissal and Affirmative Plea (ECF No. 21) and the Motion to Dismiss the 26 FAC Complaint, Partial Summary Dismissal and Affirmative Plea (ECF No. 23) filed by 27 Defendant Carsten Igor Rosenow. 28 1 I. PROCEDURAL BACKGROUND 2 On April 7, 2023, Plaintiffs “Lily,” “Sarah,” and Jane Roe as next friend for “Pia” 3 (“Plaintiffs”) initiated this action by filing a Complaint against Defendant Carston Igor 4 Rosenow (“Defendant”). (ECF No. 1.) 5 On July 13, 2023, Plaintiffs filed a First Amended Complaint (“FAC”), which is the 6 operative pleading. (ECF No. 19.) Plaintiffs seek liquidated damages pursuant to 18 U.S.C. 7 § 2255, which provides a civil remedy for victims against individuals convicted of certain 8 child pornography offenses. 9 On September 14, 2023, Defendant filed the Motion to Dismiss the Complaint, 10 Partial Summary Dismissal and Affirmative Plea (ECF No. 21), and on October 16, 2023, 11 Defendant filed the Motion to Dismiss the FAC Complaint, Partial Summary Dismissal 12 and Affirmative Plea (ECF No. 23) (collectively, the “Motions to Dismiss”). 13 On November 9, 2023, Plaintiffs filed a Response in opposition to the Motions to 14 Dismiss. (ECF No. 25.) 15 On December 11, 2023, Defendant filed a Reply. (ECF No. 26.) 16 II. ALLEGATIONS IN THE FIRST AMENDED COMPLAINT 17 On August 30, 2019, a jury found Defendant guilty of attempted sexual exploitation 18 of a child in violation of 18 U.S.C. § 2251(c) and (e) and possession of images of minors 19 engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B). (FAC ¶¶ 20 14–15.) 21 On February 26, 2020, this Court sentenced Defendant to a term of imprisonment of 22 300 months, followed by a lifetime supervised release. (Ex. 1 to FAC.) At sentencing, the 23 Court ordered restitution in the amount of $4,000 to each victim. Id. On February 27, 2020, 24 the Court “entered an Order making findings that each of the Plaintiffs herein is a victim 25 of [Defendant’s] crime as he knowingly possessed depictions of each engaged in explicit 26 sexual conduct while each was a minor and that each Plaintiff herein had suffered harm as 27 a result of [Defendant’s] crime.” (FAC ¶ 18 (citing Ex. 1 to FAC).) The Court’s Order 28 further held that Defendant was “proximately responsible for the harm to each of the 1 Plaintiffs as he had participated in the trade of their child pornography images.” Id. ¶ 18 2 (citing Ex. 1 to FAC).) 3 Plaintiffs bring claims pursuant to 18 U.S.C. § 2255(a). Plaintiffs each seek 4 liquidated damages in the amount of $150,000, reasonable attorney’s fees, pre-judgment 5 and post-judgment interest, and such other relief as the Court deems just and proper. 6 III. DISCUSSION 7 Defendant moves to dismiss the FAC on the following grounds: (1) Plaintiffs fail to 8 allege a concrete injury; (2) Plaintiffs fail to state a claim under 18 U.S.C. § 2255; (3) 9 Plaintiffs’ claims are barred by collateral estoppel and res judicata; (4) Plaintiffs’ claims 10 are not timely; and (5) venue is improper in this District. 11 A. Standing 12 Defendant contends that Plaintiffs fail to allege a concrete injury because Plaintiffs 13 “have not pleaded concrete and particularized facts supporting that they each have suffered 14 an ‘injury in fact’ by Defendant’s alleged possession of their images or alleged that the 15 [D]efendant’s action injured them in ‘a concrete and personal way[.]’” (ECF No. 21 at 11– 16 12.) 17 Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move 18 for dismissal on the grounds that the court lacks jurisdiction over the subject matter. Fed. 19 R. Civ. P. 12(b)(1). A jurisdictional attack pursuant to Rule 12(b)(1) may be facial or 20 factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, the challenger 21 asserts that the allegations contained in the complaint are insufficient on their face to 22 invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 23 2004). In a facial attack on subject matter jurisdiction under Rule 12(b)(1), the court 24 assumes the factual allegations of the complaint to be true and draws all reasonable 25 inferences in favor of the plaintiff. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009). 26 However, the court does not accept “the truth of legal conclusions merely because they are 27 cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 28 1136, 1139 (9th Cir. 2003). 1 The Article III standing doctrine limits federal court jurisdiction. See La Asociacon 2 de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 3 2010). “[T]he ‘irreducible constitutional minimum’ of standing consists of three elements.” 4 Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting Lujan v. Defenders of Wildlife, 5 504 U.S. 555, 560 (1992)). In order “to satisfy Article III’s standing requirements, a 6 plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and 7 particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is 8 fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to 9 merely speculative, that the injury will be redressed by a favorable decision.” Friends of 10 the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing 11 Lujan, 504 U.S. at 560–61). The party invoking federal jurisdiction bears the burden of 12 establishing that the standing requirements of Article III are satisfied. Spokeo, 578 U.S. at 13 338. 14 Here, the FAC alleges that Defendant was found guilty of possession of child 15 pornography in violation of 18 USC § 2252(a)(4)(B) and attempted sexual exploitation of 16 a child in violation of 18 USC § 2251(c) and (e). The FAC alleges that Plaintiffs were 17 victims of these crimes, and “have each suffered personal injury as a result of Defendant’s 18 federal child pornography crimes.” (FAC ¶ 24.) It is well established that victims of child 19 pornography suffer concrete injuries. See Elden v. Nirvana LLC, 88 F.4th 1292, 1296 (9th 20 Cir. 2023) (“In the context of § 2255, ‘pornography injures a child’s reputation and 21 emotional well-being’ just ‘[l]ike a defamatory statement’ and creates ‘reputational, 22 emotional and privacy injuries’ that constitute personal injuries.”); see also Paroline v. 23 United States, 572 U.S. 434, 457 (2014) (“The unlawful conduct of everyone who 24 reproduces, distributes, or possesses the images of the victim’s abuse … plays a part in 25 sustaining and aggravating [the harm to the victim].”); New York v. Ferber, 458 U.S. 747, 26 758 (1982) (“[T]he use of children as subjects of pornographic materials is harmful to the 27 physiological, emotional, and mental health of the child.”). Plaintiffs have adequately 28 alleged a concrete injury for Article III purposes. 1 B. Failure to State a Claim 2 Defendant moves to dismiss the FAC pursuant to Federal Rule of Civil Procedure 3 12(b)(6) on the following grounds: (1) Plaintiffs fail to allege sufficient facts to plead a 4 plausible violation of 18 U.S.C. § 2255; (2) Plaintiffs’ claims are barred by collateral 5 estoppel and res judicata; (3) and Plaintiffs’ claims are not timely. 6 1. Legal Standard 7 Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for “failure 8 to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to state 9 a claim for relief, a pleading “must contain … a short and plain statement of the claim 10 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 11 12(b)(6) “is proper only where there is no cognizable legal theory or an absence of 12 sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular 13 Wireless Servs., Inc., 622 F.3d 1045, 1041 (9th Cir. 2010) (quoting Navarro v. Block, 250 14 F.3d 729, 732 (9th Cir. 2001)). 15 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 16 accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 17 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 18 has facial plausibility when the plaintiff pleads factual content that allows the court to draw 19 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 20 However, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 21 requires more than labels and conclusions, and a formulaic recitation of the elements of a 22 cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (quoting Fed. 23 R. Civ. P. 8(a)). While a pleading “does not require ‘detailed factual allegations,’” Rule 8 24 nevertheless “demands more than an unadorned, the defendant-unlawfully-harmed-me 25 accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A court is not 26 “required to accept as true allegations that are merely conclusory, unwarranted deductions 27 of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 28 (9th Cir. 2001). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory 1 factual content, and reasonable inferences from that content, must be plausibly suggestive 2 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th 3 Cir. 2009). 4 2. 18 U.S.C. § 1255 5 Defendant contends that Plaintiffs fail to state a claim under 18 U.S.C. § 1255. 6 Defendant contends that Plaintiffs fail to plausibly allege that the claimed violation caused 7 a personal injury and damages, that Plaintiffs were minors at the time that Defendant 8 violated the federal child pornography statutes, and that Plaintiffs have been identified in 9 the pornographic images possessed by Defendant. 10 Section 2255(a) provides that: 11 Any person who, while a minor, was a victim of a violation of section 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 12 2422, or 2423 of this title and who suffers personal injury as a result of such 13 violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall 14 recover the actual damages such person sustains or liquidated damages in the 15 amount of $150,000, and the cost of the action, including reasonable attorney's fees and other litigation costs reasonably incurred. The court may also award 16 punitive damages and such other preliminary and equitable relief as the court 17 determines to be appropriate.

18 18 U.S.C. § 2255(a). To prevail on a § 2255(a) claim, a plaintiff must show that he/she was 19 a victim of a qualifying criminal statute. Id. A plaintiff who establishes a violation of § 20 2255(a) is entitled to a statutory award of $150,000. Id. “The point of this provision is to 21 allow such victims to recover without having to endure damages hearings.” Jesness v. 22 Bridges, No. C18-1225-RSM, 2021 WL 2895129, at *1 (W.D. Wash. July 9, 2021) (citing 23 Doe v. Boland, 698 F.3d 877 (6th Cir. 2012)). 24 Here, the FAC alleges that Defendant “was found guilty by a jury of the predicate 25 federal child pornography crime found at 18 U.S.C. §2252(a)(4)(B).”1 (FAC ¶ 21; Ex. 1 to 26

27 1 Section 2252(a)(4)(B) makes it unlawful for anyone to “knowingly possesses, or knowingly accesses 28 1 FAC.) The FAC alleges that “[e]ach Plaintiff is a victim of Defendant’s violation of 18 2 U.S.C. 2252(a)(4)(B)” and “suffered harm as a result of [Defendant’s] crime.” (FAC ¶¶ 15, 3 18.) Section 2255(a) does not require Plaintiffs to prove the amount of damages suffered. 4 See “Amy” v. Curtis, Case No. 19-cv-02184-PJH, 2020 WL 6271046, at *5 (N.D. Cal. Oct. 5 26, 2020) (“[P]laintiffs need only demonstrate that they were victims in order to receive 6 liquidated damages and do not also need to demonstrate that they suffered a personal 7 injury.”); United States v. Reynolds, No. 1:09–CR–00476 AWI, 2011 WL 1897781, at *5 8 (E.D. Cal. May 18, 2011) (“In a suit brought under Section 2255 it appears the victim does 9 not have to prove the exact amount of damage a specific defendant caused the victim.”); 10 Boland, 698 F.3d at 882–83 (“Once a child has shown she was the victim of a sex crime, 11 there is little point in forcing her to prove an amount of damages, only to have the court 12 disregard that figure and award the statutory minimum.”). Thus, the allegations in the FAC 13 are sufficient to state a claim under § 2255(a).2 14 3. Collateral Estoppel & Res Judicata 15 Defendant contends that Plaintiffs’ claims are barred by collateral estoppel and res 16 judicata. As to collateral estoppel, Defendant contends that because damages arising out of 17 his federal child pornography crimes have already been determined by this Court in the 18 restitution order, Plaintiffs are precluded from relitigating the issue in the present case. 19 “Issue preclusion, or collateral estoppel, ‘bars successive litigation of an issue of fact 20 or law actually litigated and resolved in a valid court determination essential to the prior 21

22 contain any visual depiction that has been mailed, or has been shipped or transported using any means or 23 facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including 24 by computer, if … the producing of such visual depiction involves the use of a minor engaging in sexually 25 explicit conduct; and … such visual depiction is of such conduct[.]” 18 U.S.C. § 2252(a)(4)(B).

26 2 Defendant contends that Plaintiffs “have not established the identity of the person pictured in any images that form the basis of the complaint.” (ECF No. 21 at 13.) The FAC alleges that Plaintiffs are “victim[s] 27 of Rosenow’s crime as he knowingly possessed depictions of each engaged in explicit sexual conduct while each was a minor[.]” (FAC ¶ 18.) For purposes of a 12(b)(6) motion, Plaintiffs’ allegations must be 28 1 judgment, even if the issue recurs in the context of a different claim.’” Garity v. APWU, 2 828 F.3d 848, 865 n.8 (9th Cir. 2016) (citing Taylor v. Sturgell, 553 U.S. 880, 892 (2008)). 3 Issue preclusion applies where it is established that: “(1) the issue necessarily decided at 4 the previous proceeding is identical to the one which is sought to be relitigated; (2) the first 5 proceeding ended with a final judgment on the merits; and (3) the party against 6 whom collateral estoppel is asserted was a party or in privity with a party at the first 7 proceeding.” Hydranautics v. FilmTec Corp., 204 F.3d 880, 995 (9th Cir. 2000) (citations 8 omitted). 9 In Doe v. Hesketh, the Third Circuit considered “whether a restitution award for a 10 criminal offense bars a later-filed civil claim by a victim under § 2255 based on that same 11 offense.” 828 F.3d 159, 162 (3d Cir. 2016). Finding that “[t]he interests of a victim and the 12 government in a restitution determination are not sufficiently similar for a finding a 13 privity,” the court concluded that issue preclusion did not bar the victim’s § 2255 claim. 14 Id. at 172. The court reasoned: 15 A victim’s interest in the context of restitution is undoubtedly to achieve the maximum amount of compensation for herself permissible under the law. A 16 victim such as Doe may be willing to assume the time and cost to litigate the 17 full extent of her damages in a trial as Doe has chosen to do in her civil suit. By contrast, the interests of the government in the restitution context are 18 necessarily affected by its responsibility to “represent the interest of society 19 as a whole.” … 20 The effect of these varied interests are particularly acute in the present 21 situation as the child victim in this case had a limited ability to advocate on her behalf[.] 22

Id. at 172–73. Additionally, the court stated that it could not find privity “based on a 23 conclusion that 18 U.S.C. § 2255 or the restitution statutes expressly foreclose a 24 subsequent civil claim under § 2255 once a victim has received criminal restitution.” Id. at 25 173. “[T]he text of § 2255 does not contain any indication that its application is limited to 26 those victims who did not previously receive restitution. And, far from expressly 27 28 1 foreclosing subsequent civil claims, the restitution laws expressly contemplate such 2 claims.” Id. The Third Circuit continued: 3 [W]e are particularly loath to apply collateral estoppel to disrupt Congress’s remedial scheme where Congress has expressly provided for estoppel with 4 respect to one aspect of a later-filed civil claim, but declined to provide for 5 estoppel with respect to a victim’s damages. See 18 U.S.C. § 3664(l) (“A conviction of a defendant for an offense involving the act giving rise to an 6 order of restitution shall estop the defendant from denying the essential 7 allegations of that offense in any subsequent Federal civil proceeding ... brought by the victim.”); cf. Taylor, 553 U.S. at 903, 128 S.Ct. 2161 8 (“Congress’ provision for FOIA suits with no statutory constraint on 9 successive actions counsels against judicial imposition of constraints through extraordinary application of the common law of preclusion.”). “The courts 10 should not jam judicially created doctrines such as res judicata into the gears 11 of Congress’ carefully crafted statutory machinery.” United States v. Barnette, 10 F.3d 1553, 1561 (11th Cir.1994). 12

Id. at 174 n.19. 13 The Court finds the Third Circuit’s reasoning persuasive. Because the interests of 14 Plaintiffs and the United States with respect to the restitution order are not sufficiently 15 similar, the parties are not in privity. See “Amy”, 2020 WL 6271046, at *7 (applying 16 Hesketh’s reasoning to conclude that “any restitution received by plaintiffs pursuant to the 17 mandatory criminal restitution statute, 18 U.S.C. § 2259, does not bar them from pursuing 18 and recovering a § 2255 claim for violation of the same predicate statute”). Accordingly, 19 the criminal restitution order does not preclude Plaintiffs’ § 2255 claims. 20 Defendant similarly contends that res judicata bars Plaintiffs from recovering 21 damages in the present case because they could have asserted their § 2255 claims in the 22 criminal action. Res judicata, or claim preclusion, “provides that ‘a final judgment on the 23 merits bars further claims by parties or their privies based on the same cause of 24 action.’” United States v. Schimmels (In re Schimmels), 127 F.3d 875, 881 (9th Cir. 25 1997) (quoting Montana v. United States, 440 U.S. 147, 153 (1979)). “Claim preclusion 26 ‘applies when there is (1) an identity of claims; (2) a final judgment on the merits; and (3) 27 an identity or privity between the parties.’” Cell Therapeutics, Inc. v. Lash Grp., Inc., 586 28 1 F.3d 1204, 1212 (9th Cir. 2009) (quoting Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th 2 Cir. 2002)). 3 Here, Plaintiffs were not parties to the criminal action, and as explained above, there 4 is no privity between Plaintiffs and the United States. Additionally, “an order of criminal 5 restitution is not equivalent to a judicial determination of civil damages.” Eli Lilly and Co. 6 v. Gitmed, No. 1:16–cv–00178–DAD–SAB, 2017 WL 1740132, at *3 (E.D. Cal. May 4, 7 2017) (“Criminal restitution … is a statutorily-based award of compensation, which 8 recompenses specific losses proximately caused by the criminal offense…. Meanwhile, 9 the concept of civil damages ‘is very broad, incorporating many different kinds of 10 compensation for an injury or loss.’… The damages sought in this case therefore differ 11 from those involved in the criminal court’s restitution order. Accordingly, the prior order 12 of no restitution does not prevent plaintiff from bringing a civil action for damages in the 13 instant case.”); United States v. Barnette, 10 F.3d 1553, 1562 (11th Cir. 1994) (rejecting 14 the argument that a “prior criminal restitution order is res judicata against a subsequent 15 damages action”). Accordingly, res judicata does not bar Plaintiffs’ § 2255 claim. 16 4. Statute of Limitations 17 Defendant contends that Plaintiffs’ claims are time-barred by the statute of 18 limitations. Section 2255(b) provides that “there shall be no time limit for the filing of a 19 complaint commencing an action under this section.” 18 U.S.C. § 2255(b).3 The Court 20 concludes that Plaintiffs’ § 2255 claims are timely. 21 C. Venue 22 Defendant moves to dismiss the FAC on the ground that venue is improper in this 23 District. Defendant contends that “he was outside the country at the time of the alleged 24

25 26 3 In 2022, Congress passed an amendment to 18 U.S.C. § 2255 (2018) that eliminated the statute of limitations for claims brought under § 2255. See Eliminating Limits to Justice for Child Sex Abuse 27 Victims Act of 2022, Pub L. 117-176, §§ 2–3, 136 Stat. 2108, 2108 (codified at 18 U.S.C. § 2255). Plaintiffs’ Complaint was filed on April 7, 2023. (ECF No. 1.) 28 1 offense” and “that he was a permanent resident of the Philippines during the timeframe, 2 permanently living in and working out of his residence in Manila, Philippines.” (ECF No. 3 23 at 14.) Defendant also contends that dismissal is proper “because Plaintiffs failed to 4 demonstrate or even allege that a substantial part of the events or omissions giving rise to 5 Plaintiff[s’] claims occurred in the Southern District of California or that Plaintiffs had 6 personal knowledge that Defendant resides or did reside in the district at the time of the 7 events.” Id. at 14–15. 8 Defendant is estopped from denying venue in this case. 18 U.S.C. § 3664(l) 9 provides: 10 A conviction of a defendant for an offense involving the act giving rise to an order of restitution shall estop the defendant from denying the essential 11 allegations of that offense in any subsequent Federal civil proceeding or State 12 civil proceeding, to the extent consistent with State law, brought by the victim.

13 18 U.S.C. § 3664(l). Defendant was convicted of child exploitation crimes within this 14 District that gave rise to an order of restitution. (Ex. 1 to FAC.) The claims in this matter 15 arise out of the facts surrounding this conviction, and the location of the crime conferring 16 venue was an essential allegation in the criminal matter. 17 Accordingly, Defendants’ Motions to Dismiss are denied.4 18 / / / 19 / / / 20 / / / 21 / / / 22 23 24 4 In Reply, Defendant moves to strike Plaintiffs’ Response in opposition to the Motions to Dismiss. The 25 Court does not find that the Response contains “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter,” Fed. R. Civ. P. 12(f), that would warrant striking the document. See 26 Raya v. Barka, 19-cv-2295-WQH-AHG, 2021 WL 5280648, at *1 (S.D. Cal. Nov. 12, 2021) (“Motions to strike are generally disfavored and should not be granted unless it is clear that the matter to be stricken 27 could have no possible bearing on the subject matter of the litigation…. Courts often require that the moving party make a showing of prejudice before granting a 12(f) motion to strike.” (citation omitted)). 28 1 CONCLUSION 2 IT IS HEREBY ORDERED that Motion to Dismiss the Complaint, Partial Summary 3 ||Dismissal and Affirmative Plea (ECF No. 21) and the Motion to Dismiss the FAC 4 ||Complaint, Partial Summary Dismissal and Affirmative Plea (ECF No. 23) are denied. No 5 than thirty (30) days from the date this Order is filed, Defendant shall file an answer 6 || to the FAC pursuant to Federal Rule of Civil Procedure 12(a). 7 Dated: September 20, 2024 BME: ie Z. A a 8 Hon. William Q. Hayes 9 United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28