UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

CASE NO.: 20-cv-22471-GAYLES/Otazo-Reyes 

NORTH AMERICAN SUGAR INDUSTRIES INC., 

Plaintiff, 

v. 

XINJIANG GOLDWIND SCIENCE & TECHNOLOGY 

CO., LTD., GOLDWIND INTERNATIONAL 

HOLDINGS (HK) LTD., DSV AIR & SEA INC., 

BBC CHARTERING USA, LLC, and 

BBC CHARTERING SINGAPORE PTE LTD., 

Defendants. 

/ 

DEFENDANTS’ MOTION TO DISMISS COMPLAINT 

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TABLE OF CONTENTS

Page 

TABLE OF AUTHORITIES ......................................................................................................... iii 

INTRODUCTION ...........................................................................................................................1 

FACTUAL BACKGROUND ..........................................................................................................3 

I. The Cuban Government’s Confiscation of Plaintiff’s Properties and Assets ......................3 

II. Defendants’ Alleged “Trafficking” in Plaintiff’s Confiscated Property ..............................5 

III. Plaintiff’s Recent Bankruptcy Proceedings .........................................................................7 

IV. The Core of Plaintiff’s Claims in This Action .....................................................................9 

LEGAL STANDARD ....................................................................................................................10 

ARGUMENT .................................................................................................................................10 

I. The Complaint Should Be Dismissed Because Plaintiff Lacks Article III 

Standing .............................................................................................................................10 

II. Plaintiff’s Decision Not to Disclose in Its Recent Bankruptcy Proceedings 

the Alleged Rights It Asserts Here Bar This Action ..........................................................16 

A. The Hexicon Debtors Did Not Disclose the Certified Claim or the 

 HBA Related Claims to the Bankruptcy Court and Thus Are 

Judicially Estopped From Pursuing Them Here ....................................................17 

i. Plaintiff Took a Position in Its Bankruptcy Proceeding That is 

Inconsistent with Its Claim Here................................................................19

ii. Plaintiff’s Lack of Disclosure Amounts to Bad Faith and Makes 

a Mockery of the Judicial System...............................................................22 

B. Plaintiff Lacks Standing to Bring this Action Due to Its Lack of 

Sufficient Disclosure in the Bankruptcy Case .......................................................25 

III. Plaintiff Fails to State a Claim for Trafficking in the “Confiscated Property” ..................29 

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TABLE OF CONTENTS - Continued

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IV. Plaintiff Is Precluded From Bringing a Count Under the Act 

Along With a Common-Law Count for Conspiracy ..........................................................32 

CONCLUSION ..............................................................................................................................34 

CERTIFICATE OF SERVICE ......................................................................................................36 

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TABLE OF AUTHORITIES

 Page(s) 

Cases 

A&M Mgmt. Inc. v. Deme, 

No. 18-CV-63099, 2019 WL 7344821 (S.D. Fla. May 14, 2019) .....................................34 

Allston-Wilson v. Philadelphia Newspapers, Inc., 

No. CIV.A. 05-4056, 2006 WL 1050281 (E.D. Pa. Apr. 20, 2006) ..................................26 

AquaDry Plus Corp. v. Rockhill Ins. Co., 

No. 19-CV-62331-CIV, 2020 WL 927440 (S.D. Fla. Feb. 26, 2020) ...............................34 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ...........................................................................................9, 10, 31, 32 

BedRoc Ltd., LLC v. United States, 

541 U.S. 176 (2004) ...........................................................................................................33 

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ...........................................................................................9, 10, 31, 32 

Bochese v. Town of Ponce Inlet, 

405 F.3d 964 (11th Cir. 2005) .............................................................................................9 

BPP Illinois, LLC v. Royal Bank of Scotland Grp. PLC, 

859 F.3d 188 (2d Cir. 2017).........................................................................................17, 23 

Clapper v. Amnesty Int’l USA, 

568 U.S. 398 (2013) ...........................................................................................................15 

Collins v. Compass Grp., Inc., 

965 F. Supp. 2d 1321 (N.D. Ala. 2013) .............................................................................33 

Cueto Iglesias v. Pernod Ricard, 

No. 20-CV-20157 (S.D. Fla. Aug. 17, 2020) .....................................................................16 

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TABLE OF AUTHORITIES - Continued

 Page(s) 

DeMeo v. State Farm Mut. Auto. Ins. Co., 

639 F.3d 413 (8th Cir. 2011) .............................................................................................29 

Fla. Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 

647 F.3d 1296 (11th Cir. 2011) ...........................................................................................9 

Forsyth v. NHC Place/Anniston, LLC, Inc., 

No. 18-CV-00663, 2018 WL 4909953 (N.D. Ala. Oct. 10, 2018) ....................................33 

Glen v. Am. Airlines, Inc., 

No. 20-CV-482-A, 2020 WL 4464665 (N.D. Tex. Aug. 3, 2020) ........................ 15, 16, 30, 31 

Glen v. Club Mediterranee, S.A., 

450 F.3d 1251 (11th Cir. 2006) ...................................................................................13, 16 

Glen v. Club Mediterranee S.A., 

365 F. Supp. 2d 1263 (S.D. Fla. 2005) ..............................................................................29 

Gonzalez v. Amazon.com, Inc., 

No. 19-23988-CIV, 2020 WL 1169125 (S.D. Fla. Mar. 11, 2020) ...................................31 

Griffin v. Verizon Commc’ns Inc., 

746 F. App’x 873 (11th Cir. 2018) ............................................................................................ 7 

Hagy v. Demers & Adams, 

882 F.3d 616 (6th Cir. 2018) .............................................................................................14 

Harris v. Orange S.A., 

636 F. App’x 476 (11th Cir. 2015) ..............................................................................13, 16 

Harstad v. First Am. Bank, 

39 F.3d 898 (8th Cir. 1994) ...............................................................................................26 

Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., 

No. 19-CV-23590, 2020 WL 1905219 (S.D. Fla. Apr. 17, 2020) ........................................... 13 

Henderson v. Franklin, 

782 F. App’x 866 (11th Cir. 2019) ..................................................................18, 19, 22, 23 

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TABLE OF AUTHORITIES - Continued

 Page(s) 

Henderson v. U.S. Sec. Assocs., Inc., 

No. 17-CV-3329, 2018 WL 5044634 (N.D. Ga. Oct. 17, 2018) .......................................23 

Henry v. Jefferson Cnty. Personnel Bd., 

519 F. Supp. 2d 1171 (N.D. Ala. 2007) .................................................................................. 33 

Howard v. Highlands Med. Ctr., 

No. 15-CV-00393-CLS, 2015 WL 4730079 (N.D. Ala. Aug 10, 2015) ................................. 33 

In re Ampace Corp., 

279 B.R. 145 (Bankr. D. Del. 2002) ............................................................................27, 29 

In re Bridgeport Holdings, Inc., 

326 B.R. 312 (Bankr. D. Del. 2005) ..................................................................................27 

In re Coastal Plains, Inc., 

179 F.3d 197 (5th Cir. 1999) .......................................................................................19, 24 

In re Hart Oil & Gas, Inc., 

534 B.R. 35 (Bankr. D.N.M. 2015) ...................................................................................27 

In re Ice Cream Liquidation, Inc., 

319 B.R. 324 (Bankr. D. Conn. 2005) ...............................................................................26 

In re Kane, 

628 F.3d 631 (3d Cir. 2010)...............................................................................................26 

In re Mosaic Mgmt. Grp., Inc., 

614 B.R. 615 (Bankr. S.D. Fla. 2020)................................................................................27 

In re Pen Holdings, Inc., 

316 B.R. 495 (Bankr. M.D. Tenn. 2004) ...............................................................25, 26, 27 

In re Transit Grp., Inc., 

332 B.R. 45 (Bankr. M.D. Fla. 2005) ................................................................................26 

In re United Operating, LLC, 

540 F.3d 351 (5th Cir. 2008) .............................................................................................26 

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TABLE OF AUTHORITIES - Continued

 Page(s) 

In re USN Commc’ns, Inc., 

280 B.R. 573 (Bankr. De. Del. 2002) ................................................................................27 

Indulgence Yacht Charters Ltd. v. Ardell Inc., 

No. 08-60739, 2008 WL 4346749 (S.D. Fla. Sept. 16, 2008) .............................................4 

Jacobs v. A-C Prod. Liab. Tr., 

No. 09-CV-30143-ER, 2015 WL 5818388 (E.D. Pa. Oct. 6, 2015) ..................................26 

Jones v. United States, 

467 F. App’x 815 (11th Cir. 2012) ....................................................................................17 

Kawa Orthodontics, LLP v. Sec’y, U.S. Dep’t of the Treasury, 

773 F.3d 243 (11th Cir. 2014) ...........................................................................................12 

King v. Adtran, Inc., 

No. 13-CV-1362-CLS, 2014 WL 6983312 (N.D. Ala. Dec. 10, 2014) .............................33 

Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. General Motors Corp., 

337 F.3d 314 (3d Cir. 2003)....................................................................................... passim 

Lujan v. Defs. of Wildlife, 

504 U.S. 555 (1992) .....................................................................................................11, 12 

Michel v. NYP Holdings, Inc., 

816 F.3d 686 (11th Cir. 2016) ...........................................................................................32 

Miller v. Gizmodo Media Grp., LLC, 

No. 18-24227-CIV, 2019 WL 5864176 (S.D. Fla. June 5, 2019) ......................................34 

Miller v. Gizmodo Media Grp., LLC, 

No. 18-24227-CIV, 2019 WL 1790248 (S.D. Fla. Apr. 24, 2019) ....................................34 

Nicklaw v. Citimortgage, Inc., 

839 F.3d 998 (11th Cir. 2016) ...........................................................................................14 

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TABLE OF AUTHORITIES - Continued

 Page(s) 

Nunnelee v. United States, 

573 F. App’x 886 (11th Cir. 2014) ..............................................................................13, 16 

Oneida Motor Freight, Inc. v. United Jersey Bank, 

848 F.2d 414 (3d Cir. 1988).........................................................................................17, 18 

Oxford Asset Mgmt., Ltd. v. Jaharis, 

297 F.3d 1182 (11th Cir. 2002) .........................................................................................10 

Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 

81 F.3d 355 (3d Cir. 1996).....................................................................................17, 18, 23 

Salcedo v. Hanna, 

936 F.3d 1162 (11th Cir. 2019) .........................................................................................11 

Schlesinger v. Reservists Comm. to Stop the War, 

418 U.S. 208 (1974) ...........................................................................................................15 

Slater v. United States Steel Corp., 

871 F.3d 1174 (11th Cir. 2017) .......................................................................17, 18, 19, 23 

Smith v. Haynes & Haynes P.C., 

940 F.3d 635 (11th Cir. 2019) .........................................................................17, 18, 19, 22 

Spokeo, Inc. v. Robins, 

136 S. Ct. 1540 (2016) ............................................................................................... passim 

Thole v. U.S. Bank N.A., 

140 S. Ct. 1615 (2020) .....................................................................................11, 14, 15, 16 

Trichell v. Midland Credit Mgmt., Inc., 

964 F.3d 990 (11th Cir. 2020) ...............................................................................10, 11, 16 

United States v. Amodeo, 

916 F.3d 967 (11th Cir. 2019) ...........................................................................................13 

United States v. Ross, 

963 F.3d 1056 (11th Cir. 2020) .........................................................................................10 

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 Page(s) 

Valley Forge Christian Coll. v. Americans United for Separation of 

 Church & State, Inc., 

454 U.S. 464 (1982) ...........................................................................................................15 

Statutes 

11 U.S.C. § 101 ................................................................................................................................7 

11 U.S.C. § 521(a) .........................................................................................................................17 

11 U.S.C. § 1123(b)(3) ..................................................................................................................26 

11 U.S.C. § 1141 ............................................................................................................................26 

22 U.S.C. § 6021 .................................................................................................................... passim 

22 U.S.C. § 6023(13) .................................................................................................................1, 30 

22 U.S.C. § 6082 ............................................................................................................................31 

22 U.S.C. § 6082(a) .........................................................................................................................1 

22 U.S.C. § 6082(a)(1)(A) .............................................................................................................29 

22 U.S.C. § 6082(a)(1)(A)(i) .........................................................................................................12 

22 U.S.C. § 6082(a)(3) .....................................................................................................................9 

22 U.S.C. § 6082(f) ........................................................................................................................32 

22 U.S.C. § 6085(c) .........................................................................................................................1 

29 U.S.C. § 1001 ............................................................................................................................14 

Rules 

Fed. R. Civ. P. 10(c) ........................................................................................................................4 

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Fed. R. Civ. P. 12(b)(1)................................................................................................................1, 9 

Fed. R. Civ. P. 12(b)(6)..........................................................................................................1, 9, 29 

Other Authorities

U.S. Const. art. III .................................................................................................................. passim 

U.S. Const. art. III, § 1 ...................................................................................................................10 

U.S. Const. art. III, § 2 ...................................................................................................................10 

New Oxford American Dictionary 1738 (3d ed. 2010) .................................................................29

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Defendants Goldwind International Holdings (HK) Ltd. (“Goldwind International”), DSV 

Air & Sea Inc. (“DSV US”), BBC Chartering USA, LLC and BBC Chartering Singapore PTE 

Ltd. (together, “BBC” and collectively with Goldwind International and DSV US, 

“Defendants”),1 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and this 

Court’s Notice of Court Practice (ECF No. 4), move the Court for the entry of an Order 

dismissing the Complaint filed by North American Sugar Industries Inc. (“Plaintiff”) for lack of 

subject-matter jurisdiction and failure to state a claim upon which relief can be granted.2

INTRODUCTION 

The basis of Plaintiff’s suit is Title III of the Cuban Liberty and Democratic Solidarity 

(LIBERTAD) Act. See 22 U.S.C. § 6021, et seq. (the “Act” or “Title III”). The Act, which until 

May 2019 had been suspended since its enactment nearly twenty-five years ago, creates a 

statutory cause of action for Americans who own claims to confiscated Cuban property against a 

person who “traffics . . . knowingly and intentionally” in that property. Id. §§ 6023(13), 6082(a). 

The Act grants the President the ability to suspend the right to bring an action under it for 

successive six-month periods. Id. § 6085(c). Shortly after the Act was enacted in March 1996, 

President Clinton suspended the right to bring an action under Title III and renewed the 

suspension during the remainder of his presidency. Presidents Bush and Obama did the same for 

each succeeding six-month period thereafter. President Trump continued the suspension, for a 

time. Then, more than two decades after the Act’s passage, on May 2, 2019, the suspension of 

the right to bring a Title III action was permitted to expire. Plaintiff now seeks to recover from 

each Defendant extraordinary statutory damages (which have never previously been awarded in 

1 As of the date of the filing of this Motion, Xinjiang Goldwind Science & Technology 

Co., Ltd. has not been served. 

2

Each Defendant is also separately and contemporaneously filing a Motion to Dismiss for 

Lack of Personal Jurisdiction. 

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any other case) for purported trafficking in Plaintiff’s confiscated property and for conspiring to 

do precisely the same. See Compl. ¶¶ 189–245. Plaintiff’s case, however, should be dismissed 

for at least four independent reasons. 

First, Plaintiff lacks standing under Article III of the United States Constitution because 

Plaintiff does not – and cannot – allege an injury in fact that is fairly traceable to any 

Defendant’s conduct. 

Second, aside from this threshold issue of Article III standing, Plaintiff is judicially 

estopped from pursuing these claims, and lacks standing to do so, because of its recent federal 

bankruptcy proceedings. Last year, Plaintiff, along with its parent companies and thirteen 

additional co-debtors, successfully exited their “pre-packaged,” jointly-administered Chapter 11 

bankruptcy case (the “Bankruptcy Case”) filed in the United States Bankruptcy Court for the 

District of Delaware (the “Bankruptcy Court”) by obtaining that court’s confirmation of a 

bankruptcy reorganization plan (the “Reorganization Plan”). In the Bankruptcy Case, Plaintiff 

did not disclose or identify as assets either the certified claim from the Foreign Claims 

Settlement Commission (“FCSC”) (the “Certified Claim,” now attached to Plaintiff’s Complaint 

as Exhibit 1) or any cause(s) of action under the Act or for conspiring to do the same 

(collectively, the “HBA Related Claims”). In this action, however, Plaintiff now takes the 

position that it owns such assets and is therefore entitled to damages allegedly in excess of the 

disclosed going concern and asset-liquidation values of itself and all its former co-debtors 

combined. Given these circumstances, Plaintiff is judicially estopped from pursuing its claims in 

this Court. In addition, the asset-vesting terms and reservation-of-rights provisions of the 

Reorganization Plan provided neither notice that Plaintiff owned the Certified Claim or the HBA 

Related Claims nor any indication of their value to creditors. Because Plaintiff failed to disclose 

ownership of these assets, and affirmatively swore that Plaintiff owned no litigation claims or 

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other assets, the Bankruptcy Court was deprived of the ability to administer these assets (i.e., of 

the ability to do its job), and therefore, Plaintiff’s Certified Claim and HBA Related Claims 

remain the property of Plaintiff’s estate and are exclusively within the Bankruptcy Court’s 

jurisdiction. Plaintiff thus lacks standing to bring the HBA Related Claims, and this Court lacks 

subject-matter jurisdiction. 

Third, the Complaint does not contain any factual allegations that Defendants knowingly 

and intentionally trafficked in the “Confiscated Property” (as defined in the Complaint). While 

the Complaint alleges facts regarding trafficking in Puerto Carupano – one of the dozens of 

assets that make up the “Confiscated Property” – there are no allegations that Defendants 

trafficked in the broader “Confiscated Property” that Plaintiff alleges is valued at $97.37 million 

(as opposed to Puerto Carupano’s valuation of just over $2 million). To state a claim for relief, 

Title III requires facts showing that Defendants engaged in commercial activity using or 

otherwise benefiting from confiscated property. The Complaint fails to allege any facts that 

these Defendants engaged in any activity where they used or benefitted from any confiscated 

property other than Puerto Carupano. The Complaint thus fails to state a claim that Defendants 

trafficked in the “Confiscated Property.” 

Fourth, the Act mandates that a plaintiff may not bring a cause of action under Title III 

and also bring an independent common-law claim, such as the claim of civil conspiracy alleged 

here. Plaintiff’s Complaint does exactly that, and thus violates the express language of the Act 

and should be dismissed. 

FACTUAL BACKGROUND 

I. The Cuban Government’s Confiscation of Plaintiff’s Properties and Assets 

Plaintiff, through a number of subsidiary companies, allegedly once owned various real 

and personal property as well as a variety of intangible assets in Cuba “relating to the production, 

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refining, and transportation of raw sugar.” Compl. ¶¶ 19, 64; id. at Ex. 1, at 2. Plaintiff alleges 

that in 1960 the Castro regime confiscated these various related companies and their properties 

and assets located across the island nation (the “Confiscated Property”). Id. ¶ 3. According to 

Plaintiff’s allegations and the Certified Claim issued by the FCSC,3 the Confiscated Property 

ranged from harvested lands, windmills, and warehouses, to trucks, plows, work animals, cash, 

and small tools. See generally id. at Ex. 1. The Confiscated Property also included accounts 

receivable, livestock, breeding mares, inventory of planting and growing cane, marine 

equipment, harvested crops, unharvested crops, factory pumps, electric motors, a carpenter shop, 

an evaporating plant, wharves, unexpired insurance, railroad tracks, railroad stations, telephone 

systems, and turbogenerators, among other assets. Id. The tangible assets were physically 

located in at least four different Cuban provinces. Id. One of the dozens of assets allegedly 

confiscated by the Cuban government was Puerto Carupano (referred to in the Complaint as the 

“Confiscated Port”),4 a commercial shipping port located in Cayo Juan Claro, Cuba. Id. ¶¶ 65–

66. 

On March 26, 1969, the FCSC – a body given jurisdiction over claims of U.S. nationals 

against the Government of Cuba, see id. at Ex. 1, at 1 – issued the Certified Claim, finding that 

the total value of the Confiscated Property that Plaintiff lost as a result of the actions of the 

3

Plaintiff defines “Confiscated Property” in its Complaint to include the dozens of assets 

individually listed and valued in the Certified Claim attached as Exhibit 1 to the Complaint. 

Compl. ¶ 64 (“Exhibit 1 (attached hereto) includes a more detailed description of the Confiscated 

Property and its value.”). The Court may consider Exhibit 1 to the Complaint at the motion to 

dismiss stage. Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a 

pleading is a part of the pleading for all purposes.”); see also Indulgence Yacht Charters Ltd. v. 

Ardell Inc., No. 08-60739-CMA, 2008 WL 4346749, at *4 (S.D. Fla. Sept. 16, 2008) (“[W]hile 

courts accept the facts in a complaint as true in considering a motion to dismiss, they can 

be trumped by contradictory facts presented in an exhibit or attachment to the pleading.”). 

4

Puerto Carupano is also referred to as “Port of Cayo Juan Claro.” Compl. ¶ 65. In the 

Certified Claim, Port of Cayo Juan Claro is listed as part of the Confiscated Property on page 14. 

Id. at Ex. 1, at 14. 

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Cuban government was $97,373,414.72. Id. at Ex. 1, at 21. The Certified Claim shows that only 

$2,228,000 of the $97.37 million value of the Confiscated Property is attributable to Puerto 

Carupano. See id. at Ex. 1, at 14. 

II. Defendants’ Alleged “Trafficking” in Plaintiff’s Confiscated Property 

According to the Complaint, “[a] host of Cuban state-owned entities” are currently 

“involved in the planning, construction, and implementation” of “one of Cuba’s largest ongoing 

public works projects,” known as the “Herradura Wind Farm Project.” Compl. ¶¶ 82, 86. 

Plaintiff alleges that Defendants trafficked in Puerto Carupano in late 2018 and early 

2019 by “coordinat[ing] at least two separate voyages that delivered and unloaded equipment 

[from China] at [Puerto Carupano], by way of Florida, for use in the Herradura Wind Farm 

Project.” Id. ¶¶ 103, 198–203, 216–17, 230–33. Goldwind International, along with other nonparty, unnamed suppliers, is alleged to have manufactured, sold, and “shipped wind farm 

equipment to a Cuban state-owned entity associated with the project” that was ultimately 

“unloaded at Puerto Carupano.” Id. ¶ 5. DSV US, in turn, is alleged to have “provided 

transportation and logistical services to these suppliers in order to ship their wind farm 

equipment to Cuba via Puerto Carupano.” Id. Lastly, BBC’s is alleged to have “chartered and 

operated shipping vessels that carried and unloaded wind farm equipment.” Id. 

Plaintiff’s Complaint alleges two deliveries to Puerto Carupano that occurred on separate 

vessels: the BBC Moonstone and the BBC Jade. Id. ¶¶ 104–83.5 With respect to the alleged 

delivery via the BBC Moonstone, Plaintiff alleges that DSV US was engaged to coordinate this 

delivery of windfarm equipment to Puerto Carupano. Id. ¶¶ 104–109, 113. BBC, in turn, is 

alleged to have been “charged with operating and chartering the BBC Moonstone for shipment” 

5

For DSV US and Goldwind International, the Complaint alleges they trafficked in Puerto 

Carupano for one of these two voyages, not both. Compl. ¶¶ 106, 109, 155–56. 

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of the equipment to Puerto Carupano.6Id. ¶¶ 111, 115. The BBC Moonstone purportedly 

completed this delivery in February 2019. Id. ¶ 139. 

The other delivery to Puerto Carupano was allegedly made by the BBC Jade. Id. ¶ 154. 

The Complaint specifically alleges that a non-party to this action was the supplier of the wind 

farm equipment delivered on this vessel. Id. ¶ 155. In fact, the only party to this suit alleged to 

have been involved in the delivery of the equipment on the BBC Jade is BBC, which was 

purportedly completed in January 2019. Id. ¶¶ 155–57, 174. Aside from these early 2019 

deliveries, Plaintiff conclusorily alleges that other shipments from Goldwind International have 

been delivered to Puerto Carupano, but provides no further details beyond that one such 

shipment is alleged to have occurred on or about December 14, 2018. Id. ¶¶ 184–85, 188. 

With regard to the BBC Moonstone and the BBC Jade delivering the equipment to Puerto 

Carupano “by way of Florida,” Plaintiff alleges merely that during one voyage, the BBC 

Moonstone arrived at and departed from the Port of Miami on the same day, id. ¶¶ 135, 138, and 

during the other voyage, the BBC Jade arrived at the Port of Miami one day and departed the 

next. Id. ¶¶ 170, 173. Plaintiff also alleges that several days after leaving the Port of Miami, the 

vessels “stopped at the [Puerto Carupano] in Cuba to unload the wind farm equipment” destined 

for the Herradura Wind Farm Project. Id. ¶¶ 143, 177. 

There are no factual allegations about Defendants trafficking in the Confiscated Property

as opposed to the Confiscated Port. Indeed, other than Puerto Carupano, the Complaint does not 

allege that Defendants trafficked in any of the various warehouses, farms, equipment, crops, 

railroads, or many other properties and assets confiscated by the Cuban government and defined 

as the Confiscated Property. 

6

The BBC Moonstone also allegedly delivered equipment for the Herradura Wind Farm 

Project shipped by another entity entirely unrelated to Goldwind International. Compl. ¶ 107. 

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III. Plaintiff’s Recent Bankruptcy Proceedings 

Some sixty years after the Castro regime seized the Confiscated Property, on April 1, 

2019, Plaintiff and its parent companies and thirteen additional co-debtors (collectively, the 

“Hexion Debtors”) filed voluntary petitions for relief under Chapter 11 of Title 11 of the United 

States Code, 11 U.S.C. §§ 101, et seq. (the “Bankruptcy Code”).7 See generally Holbert Decl. 

Ex. A, at Exs. BA-1–BA-4. The Hexion Debtors were owned pre-bankruptcy by highly 

sophisticated investors and were represented during the bankruptcy proceedings by legal counsel 

Latham & Watkins LLP and Richards, Layton & Finger, P.A.; by financial advisor Moelis & 

Company; and by restructuring advisor AlixPartners. Id. at Exs. BA1-BA-4, BA-14, BA-17.

As part of its bankruptcy proceedings, Plaintiff was required to disclose to the 

Bankruptcy Court and creditors its assets, liabilities, and the status of its financial affairs. See id.

at Exs. BA-5, BA-9. None of the documents submitted by Plaintiff to the Bankruptcy Court and 

its creditors, however, ever mentioned the Certified Claim or the HBA Related Claims. See id.; 

see also id. at Exs. BA-6–BA-8, BA-10–BA-12. The Hexion Debtors instead advanced the 

position that Plaintiff either (a) possessed no litigation claims or (b) could not identify and list 

7

For the Court’s convenience and ease of reference, the Bankruptcy Pleading Appendix 

annexed to the Declaration of Lynn W. Holbert (the “Holbert Decl.”), attached to this Motion as 

Exhibit “A,” includes an index of the titles and defined terms used for each pleading referenced 

herein, as well as copies of each relevant pleading from the bankruptcy cases of each of the 

Hexion Debtors, obtained from the publicly available docket maintained by the Bankruptcy 

Court. Defendants respectfully request that the Court take judicial notice of Bankruptcy Case 

filings enumerated in the Bankruptcy Pleading Appendix. In the Eleventh Circuit, “‘a district 

court may consider judicially noticed documents’ . . . at any stage of the proceeding.” Griffin v. 

Verizon Commc’ns Inc., 746 F. App’x 873, 876 (11th Cir. 2018). “Courts typically take judicial 

notice of record documents from other judicial proceedings.” Id. (citations omitted) (holding 

that district court properly took judicial notice of other court filings in considering a Rule 12 

motion because “[t]he documents submitted by [defendant] are from the public dockets of 

federal judicial proceedings. That being the case, they are not subject to reasonable dispute, and 

the district court did not err by taking judicial notice of them”). Here, Plaintiff’s existence, title 

to the HBA Related Claims, and standing as a reorganized debtor to bring the HBA Related 

Claims depends on the documents filed with and approved by the Bankruptcy Court. These 

documents are, in turn, attached to the Holbert Declaration. 

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any such assets “despite reasonable efforts.” See, e.g., id. at Exs. BA-5–BA-8 (including in the 

“Global Notes” and “Schedule A/B: Assets – Real and Personal Property” sections no mention of 

the FCSC Certified Claim as an asset in response to question 70 of its Schedules, which requests 

a list of “[a]ll other assets”, including “[c]auses of action against third parties (whether or not a 

lawsuit has been filed)”); id. at Ex. BA-6, at question no. 15, line 15.42 (ascribing 

“undetermined” or unknown distributable value to Plaintiff). 

Further, neither the Reorganization Plan nor the disclosure statement in support of the 

Reorganization Plan (the “Disclosure Statement”) mentioned the FCSC Certified Claim or the 

HBA Related Claims, either. See id. at Exs. BA-14, BA-17. These assets were not disclosed in 

the general reservation of rights and asset-vesting provisions or the “Preservation of Rights of 

Action” section. See id. at Exs. BA-14, BA-17. Nor were they included in the Liquidation 

Analysis or Valuation Analysis annexed to the Disclosure Statement. See id. at Ex. BA-17. 

Instead, the Liquidation Analysis reflected that Plaintiff had no balance sheet value. Id. 

Moreover, although the Plan Supplement contained a list of “Retained Causes of Action,” that 

list did not include the HBA Related Claims that Plaintiff asserts here. See id. at Ex. BA-15. 

Within three months of the commencement of the Bankruptcy Case, on June 25, 2019, 

the Bankruptcy Court entered its Findings of Fact, Conclusions of Law, and Order Confirming 

Second Amended Joint Chapter 11 Plan of Reorganization of Hexion Holdings LLC and its 

Debtor Affiliates under Chapter 11 of the Bankruptcy Code (the “Confirmation Order”). See id

at Ex. BA-13. The Confirmation Order confirmed the Reorganization Plan, which became 

effective on July 1, 2019, and Plaintiff and the other Hexion Debtors successfully exited the 

bankruptcy proceedings they had commenced just three months earlier. See id. at Ex. BA-16. 

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IV. The Core of Plaintiff’s Claims in This Action 

At its core, then, the Complaint alleges that Defendants on two discrete occasions (or, for 

some Defendants, just once) “trafficked” in the Confiscated Port, which comprises 2% 

($2,228,000) of the total value of Plaintiff’s Confiscated Property ($97,373,414.72) expropriated 

by the Cuban government. Nonetheless, in this action, Plaintiff seeks to recover the total value 

of its Confiscated Property without alleging that Defendants knowingly and intentionally 

trafficked in any Confiscated Property beyond the Confiscated Port. Plaintiff also seeks 

compounded interest accruing over the last sixty years, trebled under 22 U.S.C. § 6082(a)(3), and 

attorneys’ fees and costs. See Compl. at Prayer for Relief ¶¶ 1, 3. 

For the reasons explained below, the Complaint should be dismissed. 

LEGAL STANDARD 

A motion to dismiss for lack of standing is governed by Rule 12(b)(1) because standing is 

jurisdictional. See Fla. Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296, 1302 

(11th Cir. 2011). Standing is a “threshold jurisdictional question” that must be addressed “prior 

to and independent of the merits of a party’s claims.” Bochese v. Town of Ponce Inlet, 405 F.3d 

964, 974 (11th Cir. 2005) (citation omitted). “The plaintiff, as the party invoking federal 

jurisdiction, bears the burden of establishing” each element of standing. Spokeo, Inc. v. Robins, 

136 S. Ct. 1540, 1547 (2016). 

Under Rule 12(b)(6), a complaint must be dismissed unless it “contain[s] sufficient 

factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “[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.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (citation omitted). “Factual 

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allegations must be enough to raise a right to relief above the speculative level,” id., meaning 

that a plaintiff must “plead[] factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. And 

while the Court must accept a plaintiff’s well-pled facts as true, it need not accept “conclusory 

allegations, unwarranted deductions of fact[],” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 

1182, 1188 (11th Cir. 2002), or “legal conclusion[s] couched as a factual allegation.” Twombly,

550 U.S. at 555 (quotation omitted). 

ARGUMENT 

I. The Complaint Should Be Dismissed 

Because Plaintiff Lacks Article III Standing 

Plaintiff lacks Article III standing because it does not (and cannot) allege that it suffered 

a “concrete” injury, traceable to the shipments of equipment to Puerto Carupano, Cuba on which 

this action is based, that is distinct from the injury it sustained sixty years ago when the Cuban 

government nationalized that port. The Court therefore lacks subject matter jurisdiction and 

should dismiss this action. 

The doctrine of standing is embodied in the constitutional requirement that courts are 

empowered to resolve only “Cases” or “Controversies.” U.S. Const. art. III, §§ 1–2; see also

Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir. 2020) (citing Spokeo, 136 S. 

Ct. at 1547). If a plaintiff lacks standing, then a court lacks subject matter jurisdiction and must 

dismiss the case. United States v. Ross, 963 F.3d 1056, 1062 (11th Cir. 2020) (standing “is a 

threshold jurisdictional question which must be addressed prior to and independent of the merits 

of a party’s claims”) (quotation marks and citation omitted). 

The legal standards governing standing are well established; the Supreme Court and the 

Eleventh Circuit have recently reiterated and applied them. The “irreducible constitutional 

minimum of standing consists of three elements. . . . The plaintiff must have (1) suffered an 

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injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that 

is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. at 1547 (citing 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–60 (1992)) (internal quotations omitted); Trichell, 

964 F.3d at 996–97 (same). The plaintiff bears the burden of establishing these elements. 

Spokeo, 136 S. Ct. at 1547. At the pleadings stage, plaintiff “must clearly . . . allege facts 

demonstrating each element.” Id. (alteration in original) (internal quotations omitted). 

To establish an injury in fact, “a plaintiff must show that he or she suffered ‘an invasion 

of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not 

conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). A concrete injury 

“must be ‘de facto’; that is, it must actually exist.” Spokeo, 136 S. Ct. at 1548. 

And, crucial to this case, a plaintiff does not automatically have standing simply because 

it alleges the elements of a cause of action created by Congress. The Supreme Court “has 

rejected the argument that a plaintiff automatically satisfies the injury-in-fact requirement 

whenever a statute grants a person a statutory right and purports to authorize that person to sue to 

vindicate that right. . . . Article III standing requires a concrete injury even in the context of a 

statutory violation.” Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1620–21 (2020) (quoting Spokeo, 

136 S. Ct. at 1549) (internal quotations omitted); Salcedo v. Hanna, 936 F.3d 1162, 1167 (11th 

Cir. 2019) (same); see also Spokeo, 136 S. Ct. at 1548 (“Congress cannot erase Article III’s 

standing requirements by statutorily granting the right to sue to a plaintiff who would not 

otherwise have standing.”) (quotation marks and citation omitted). 

Plaintiff does not and cannot allege the first two “irreducible” requirements to establish 

standing – that is, that Plaintiff “suffered an injury in fact” and that such injury “is fairly 

traceable to the challenged conduct” of Defendants. 

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First, the Complaint seeks relief based only and entirely on an injury it allegedly 

sustained in 1959 and 1960 at the hands of the Cuban government. Based on the value of the 

property, the FCSC certified that Plaintiff suffered a loss in the amount of $97,373,414.72, 

between November 1959 and July 1960, as a result of the Cuban government’s confiscation of 

Plaintiff’s various properties in Cuba. See Compl. ¶¶ 68–69 (describing confiscation of 

Confiscated Property), 76–81 (describing valuation of Confiscated Property); id. at Ex. 1. 

Plaintiff seeks damages in that amount plus interest, treble damages, attorneys’ fees and costs, 

see Compl. at Prayer for Relief, which are precisely the damages that the Act facially provides 

for. See 22 U.S.C. § 6082(a)(1)(A)(i); see also Comp. ¶¶ 57–62. 

The only relief that Plaintiff seeks in this case, therefore, is in respect to the injury it 

sustained in 1959 and 1960 as a result of Cuba’s confiscation of the Confiscated Property. 

Plaintiff fails to allege that it suffered any other injury. The word “injury” (or other forms 

thereof) appears in the Complaint once, in paragraph 28. That allegation confirms that the harm 

Plaintiff seeks to redress here consists of the “losses and injuries” it suffered from Cuba’s 

“expropriation” of its property. The word “damages” (or other forms thereof) appears many 

times in the Complaint; in every instance, it refers only to the statutory damages under the Act or 

the losses determined by the Certified Claim. E.g., Compl. ¶¶ 39, 57, 190, 195, 206, 213, 220, 

236, 245. Plaintiff’s losses as determined in the Certified Claim were caused by Cuba in 1960 

when it took Plaintiff’s property, but those losses are not “traceable” to Defendants’ alleged uses 

of Puerto Carupano in 2018. Kawa Orthodontics, LLP v. Sec’y, U.S. Dep’t of the Treasury, 773 

F.3d 243, 247 (11th Cir. 2014) (“To establish causation, [plaintiff] must demonstrate its alleged 

injury is fairly traceable to the challenged action of the defendant.”) (quoting Lujan, 504 U.S. at 

560) (internal quotation marks omitted). 

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Second, the alleged use of Puerto Carupano by Defendants (or anyone else) does not, as a 

matter of law constitute an injury-in-fact to Plaintiff, because Plaintiff does not own any property 

interest in Puerto Carupano (which the Complaint labels the “Confiscated Port”) itself. Plaintiff 

currently owns only a “claim” relating to the Confiscated Port. Glen v. Club Mediterranee, S.A., 

450 F.3d 1251, 1255 (11th Cir. 2006) (“Club Med”) (rejecting plaintiffs’ argument that the Act 

rendered Cuba’s expropriation of property ineffective and, therefore, that they held an 

“ownership interest” in the property).8 Because Plaintiff does not own the Confiscated Port – 

and has not owned it since 1960 – it could not have been injured by Defendants’ use of the 

Confiscated Port in connection with the shipments approximately sixty years later in 2018. 

It is well settled that a plaintiff who does not own property lacks standing to assert a 

claim for allegedly wrongful use of that property. United States v. Amodeo, 916 F.3d 967 (11th 

Cir. 2019) (finding that once the United States government took ownership of property through 

forfeiture, the former owner lacked standing to object to how the government chose to dispose of 

the property); Harris v. Orange S.A., 636 F. App’x 476, 484 (11th Cir. 2015) (finding that 

plaintiff who did not own trademark lacked standing to pursue trade secrets claim); Nunnelee v. 

United States, 573 F. App’x 886, 887 (11th Cir. 2014) (same); see also Club Med, 450 F.3d at 

1254–55 (holding that former owners of confiscated property in Cuba could not sue current users 

of the property for trespass). 

Third, Plaintiff is in the same position today as before the alleged shipments in this case 

were unloaded at Puerto Carupano. And, it would have been in the same position if no

shipments, or if thousands of shipments, had been unloaded at that port. Plaintiff held, and still 

holds, a Certified Claim for more than $97.37 million against Cuba. The shipments alleged in 

8

See also Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., No. 19-CV-23590, 2020 

WL 1905219, at *7 (S.D. Fla. Apr. 17, 2020) (finding “the Cuban Government’s confiscation of 

property extinguished any ownership rights of those who owned the property prior to the 

expropriation”). 

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this case in no way affected that Certified Claim (on which Plaintiff stands to collect in any 

eventual settlement between the United States and Cuba). Plaintiff still would not own or be 

able to exclude others from using the Confiscated Port even if the shipments had not occurred. 

The Supreme Court recently reconfirmed the core constitutional principle that, when the 

violation of a statute does not change a plaintiff’s position, that plaintiff lacks standing. Thole, 

140 S. Ct. at 1620–21. Plaintiffs in Thole were retirees who received fixed monthly payments 

under a company retirement plan. They alleged that the company made poor investment 

decisions, in violation of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 

1001 et seq., which caused the plan to lose $750 million. Appealing the dismissal of their claims 

for lack of standing, plaintiffs argued that ERISA affords them a “cause of action to sue for 

restoration of plan losses and other equitable relief.” 140 S. Ct. at 1620. The Supreme Court 

held, however, that merely satisfying the elements of a cause of action under a statute is not 

enough, because “Article III standing requires a concrete injury even in the context of a statutory 

violation.” Id. at 1620–21 (quoting Spokeo ̧ 136 S. Ct. at 1549). Plaintiffs’ position did not 

change, and would not change in the future, even if the company defendant violated the statute, 

because plaintiffs continued to receive and would be entitled to receive their fixed monthly 

benefits for their lifetimes. Plaintiffs therefore sustained no concrete injury and thus lacked 

standing. 

Similarly in this case, simply because Plaintiff has alleged (and even if it could prove) the 

elements of “trafficking” under the Act does not mean that it has Article III standing. “Although 

Congress may ‘elevate’ harms that ‘exist’ in the real world before Congress recognized them to 

actionable legal status, it may not simply enact an injury into existence, using its lawmaking 

power to transform something that is not remotely harmful into something that is.” Hagy v. 

Demers & Adams, 882 F.3d 616, 622 (6th Cir. 2018); see also Nicklaw v. Citimortgage, Inc., 839 

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F.3d 998, 1003 (11th Cir. 2016) (finding that “the requirement of concreteness under Article 

III is not satisfied every time a statute creates a legal obligation and grants a private right of 

action for its violation”). 

Plaintiff may argue that, if it lacks standing to sue – despite alleging all elements of the 

civil action under the Act and holding a $97.37 million Certified Claim – then few or no 

claimants would have standing to pursue a trafficking claim, which would allegedly defeat 

Congress’s intent in creating the Act’s civil remedy provision. That argument, however, has 

been soundly rejected by the Supreme Court. “The assumption that if [Plaintiff has] no standing 

to sue, no one would have standing, is not a reason to find standing.” Schlesinger v. Reservists 

Comm. to Stop the War, 418 U.S. 208, 227 (1974); see also Thole, 140 S. Ct. at 1621 (same).9

The district court in Glen recently dismissed a trafficking claim under the Act for lack of 

Article III standing. 2020 WL 4464665, at *2. In Glen, the plaintiff’s claim was to beachfront 

property, which the Cuban government confiscated from his mother and aunt in 1960, and on 

which luxury hotels were later built. Id. at *1. The plaintiff alleged that the defendant airline 

“trafficked” in the property by booking reservations online for hotels on that property. Id. The 

court, after stating the standards for Article III standing, id. at **4–5, concluded that the plaintiff 

lacked standing because he was not harmed by the airline’s doing business with the hotels. Id. at 

*2 (“Defendant did not deprive plaintiff of the Properties or the profits he might make if he 

9

See also Glen v. Am. Airlines, Inc., No. 20-CV-482-A, 2020 WL 4464665, at *3 (N.D. 

Tex. Aug. 3, 2020) ( “Plaintiff also argues that a finding that he lacks standing ‘would write Title 

III out of existence’ . . . . Even if such a statement is true, ‘[t]he assumption that if [plaintiff has] 

no standing to sue, no one would have standing, is not a reason to find standing.’) (citing 

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 420–21 (2013)); Valley Forge Christian Coll. V. 

Am. United for Separation of Church & State, Inc., 454 U.S. 464, 489 (1982). 

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owned and operated hotels on the Properties.”). His position remained the same regardless of 

how many reservations the airline booked, or whether it booked any at all.10

As in Glen, here Plaintiff was injured when Cuba confiscated its property in 1959 and 

1960. The Certified Claim, issued in 1969, confirmed and determined the amount of that loss. 

Plaintiff now seeks to recover that very loss from Defendants – not the Cuban government – 

because Defendants allegedly used a small portion of the Confiscated Property, the Confiscated 

Port, in connection with two shipments in 2018 and 2019. Plaintiff has thus neither alleged nor 

sustained any injury, separate from the Cuban government’s confiscation, that is traceable to 

Defendants. Plaintiff therefore lacks Article III standing and this action should be dismissed for 

lack of subject-matter jurisdiction. Harris, 636 F. App’x at 484; Nunnelee, 573 F. App’x at 887; 

Club Med, 450 F.3d at 1254–55. 

II. Plaintiff’s Decision Not to Disclose in Its Recent Bankruptcy 

Proceedings the Alleged Rights It Asserts Here Bar This Action 

Aside from a lack of Article III standing, there are two other related and insurmountable 

threshold standing issues to Plaintiff’s ability pursue its claims in this Court. Namely, Plaintiff 

omitted the Certified Claim and HBA Related Claims from all of the filings that creditors and 

the Bankruptcy Court relied upon in allowing Plaintiff and its co-debtors to exit the bankruptcy 

10 A different judge in this District recently denied a motion to dismiss a trafficking claim 

under the Act for lack of Article III standing. Cueto Iglesias v. Pernod Ricard, No. 20-CV20157, ECF No. 55 at 16-18 (S.D. Fla. Aug. 17, 2020). Defendants respectfully submit that that 

ruling is incorrect. Not only was that conclusion dicta (the court had already found that the 

plaintiffs had failed to establish personal jurisdiction over the defendant), but the court, in 

deeming the plaintiffs’ allegations that the defendant trafficked under the Act as sufficient to 

allege injury for purposes of standing, did not address the legal standards governing standing and 

in particular did not discuss the authority from Thole, Spokeo or Trichell. The Iglesias court’s 

order, therefore, did not analyze or apply binding case law holding that the violation of a federal 

statute, by itself, does not create standing. 

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proceeding. Because Plaintiff denied in its Bankruptcy Case that these assets exist, Plaintiff is 

now estopped from pursuing this case, and has no standing to do so.11

A. The Hexion Debtors Did Not Disclose the Certified 

Claim or the HBA Related Claims to the Bankruptcy 

Court and Thus Are Judicially Estopped From Pursuing Them Here 

Throughout their bankruptcy proceedings, the Hexion Debtors had “an affirmative duty 

of full disclosure.” Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362 (3d 

Cir. 1996) (debtor must disclose contingent and unliquidated claims of every nature and provide 

an estimated value for each); see also 11 U.S.C. § 521(a) (requiring that a debtor file a schedule 

of assets). “That ‘duty to disclose is a continuing one,’” Smith v. Haynes & Haynes P.C., 940 

F.3d 635, 643 (11th Cir. 2019) (citation omitted), and applies to any potential and likely causes 

of action. See Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 337 F.3d 

314, 322 (3d Cir. 2003) (holding that undisclosed, known claims are subject to judicial estoppel); 

Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 417 (3d Cir. 1988) (“It has 

been specifically held that a debtor must disclose any litigation likely to arise in a non11 The same result is reached under precedent from either the Eleventh Circuit, where 

Plaintiff has chosen to pursue the instant action, or from the Third Circuit, where Plaintiff’s 

bankruptcy case was venued. In BPP Illinois, LLC v. Royal Bank of Scotland Grp. PLC, 859 

F.3d 188 (2d Cir. 2017), for example, the Second Circuit applied precedent from the Fifth Circuit 

to judicially estop a debtor that failed to disclose litigation claims in its prior Texas bankruptcy 

case. In analyzing judicial estoppel in a context such as this, however, courts in the Eleventh 

Circuit have applied Eleventh Circuit law without regard for the venue of the prior bankruptcy 

case. See Jones v. United States, 467 F. App’x 815, 818–19 (11th Cir. 2012) (finding that the 

district court “did not abuse its discretion in applying judicial estoppel to [plaintiff’s Federal Tort 

Claims Act] claim” where plaintiff failed to disclose the existence of this claim during the course 

of her bankruptcy proceedings in United States Bankruptcy Court of the Southern District of 

Iowa). Because Plaintiff’s bankruptcy proceeding was venued in Delaware, precedents from 

both the Eleventh Circuit and the Third Circuit are included in this analysis. As stated, under 

each, the result is the same. Further, in deciding issues like those presented here, the Eleventh 

Circuit has not surprisingly looked to guidance from the Third Circuit, which includes Delaware, 

itself a leading authority on corporate and bankruptcy law. E.g. Slater v. United States Steel 

Corp., 871 F.3d 1174, 1181 (11th Cir. 2017) (citing Ryan for the proposition that the Third 

Circuit could apply judicial estoppel to preclude post-bankruptcy claim because “absent any 

good explanation, a party should not be allowed to gain an advantage by litigation on one theory, 

and then seek an inconsistent advantage by pursuing an incompatible theory”). 

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bankruptcy context”). 

The disclosure obligation is “crucial to the effective functioning of the federal bankruptcy 

system,” as “creditors and the bankruptcy court rely heavily on the debtor’s disclosure statement 

in determining whether to approve a proposed reorganization plan.” Ryan, 81 F.3d at 362. In 

the Third Circuit, in which the Bankruptcy Case was venued, “if a debtor has enough 

information prior to confirmation to suggest that it may have a possible cause of action, then that 

is a ‘known’ cause of action such that it must be disclosed.” Krystal, 337 F.3d at 323 (alteration 

and citation omitted). The same obligation exists in the Eleventh Circuit. E.g., Smith, 940 F.3d 

at 643–44 (holding that “‘[w]hen an individual files for bankruptcy, [s]he must file sworn 

disclosures listing h[er] debts and h[er] assets, including any pending civil claims’ . . . That ‘duty 

to disclose is a continuing one that does not end once the forms are submitted to the bankruptcy 

court; rather, a debtor must amend h[er] financial statements if circumstances change.’ . . . even 

after confirmation of the petitioner’s plan”) (citation omitted; gender-changing brackets in 

original). 

Parties to bankruptcy proceedings are bound by such disclosures, and judicial estoppel 

prevents those parties from subverting the judicial process and undermining the integrity of the 

bankruptcy system by “deliberately changing positions according to the exigencies of the 

moment.” Henderson v. Franklin, 782 F. App’x 866, 870 (11th Cir. 2019) (en banc) (internal 

quotations omitted) (citing Slater v. United States Steel Corp., 871 F.3d 1174, 1180 (11th Cir. 

2017)); Krystal, 337 F.3d at 325 (holding that judicial estoppel barred post-bankruptcy debtor’s 

assertion of claims known to debtor, but not disclosed, during bankruptcy case because “[s]uch 

nondisclosures [of known litigation claims] affect creditors’ willingness to negotiate their claims 

and enhance the debtor’s bargaining position by making the pot that creditors look to for 

recovery appear smaller than it really is”); Oneida Motor Freight, 848 F.2d at 416 (observing 

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that it is a “long-standing tenet of bankruptcy law” that one seeking benefits under the terms of 

the Bankruptcy Code is required to schedule all interests and property rights).12

In Slater, the Eleventh Circuit reaffirmed “that a district court may apply judicial estoppel 

when a two-part test is satisfied: the plaintiff (1) took a position under oath in the bankruptcy 

proceeding that was inconsistent with plaintiff’s pursuit of the civil lawsuit and (2) intended to 

make a mockery of the judicial system.” 871 F.3d at 1180. These prongs are met here. 

i. Plaintiff Took a Position in Its Bankruptcy 

Proceeding That Is Inconsistent with Its Claims Here 

The first element of judicial estoppel is “that the plaintiff took a position under oath in the 

bankruptcy proceeding that was inconsistent with the plaintiff’s pursuit of the civil lawsuit.” 

Smith, 940 F.3d at 643–44 (“Courts consider the omission of a legal claim from a bankruptcy 

asset schedule to be a denial that the claim exists. And a complaint in district court seeking 

damages on the same claim is considered an assertion that the claim does indeed exist. By failing 

to disclose a pending district court claim to the bankruptcy court, a plaintiff is thus deemed to be 

taking inconsistent positions. And that inconsistency can satisfy the first prong of the judicial 

estoppel test.”) (citations omitted); see also Henderson, 782 F. App’x at 871 (“Step one is 

satisfied when the plaintiff fails to disclose a claim against a third party in a bankruptcy 

proceeding (regardless of chapter) and then pursues that claim in court.”). 

Here, Plaintiff failed to sufficiently disclose or otherwise identify the Certified Claim or 

the HBA Related Claims (or their values) as an asset in its disclosures made to creditors and the 

12 As the Fifth Circuit succinctly explained in In re Coastal Plains, Inc., “courts will not 

permit a debtor to obtain relief from the bankruptcy court by representing that no claims exist 

and then [allow the debtor] subsequently to assert those claims for his own benefit in a separate 

proceeding. The interests of both the creditors, who plan their actions in the bankruptcy 

proceeding on the basis of information supplied in the disclosure statements, and the bankruptcy 

court, which must decide whether to approve the plan of reorganization on the same basis, are 

impaired when the disclosure is incomplete.” 179 F.3d 197, 205–06 (5th Cir. 1999) (emphases 

and citations omitted). 

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Bankruptcy Court at any point during the Bankruptcy Case. Holbert Decl. A, at Exs. BA-5, BA9. The other Hexion Debtors failed to do so as well. Id. at Exs. BA-6–BA-8, BA-10–BA-12. 

The Hexion Debtors instead advanced the position that Plaintiff either (a) possessed no litigation 

claims or (b) could not identify and list any such assets despite reasonable efforts: 

Id. at Ex. BA-5; see id. at Exs. BA-6–BA-8 (including in the “Global Notes” and “Schedule 

A/B: Assets – Real and Personal Property” sections no mention of the FCSC Certified Claim as 

an asset in response to question 70 of its Schedules, which requests a list of “[a]ll other assets,” 

including “[c]auses of action against third parties (whether or not a lawsuit has been filed)”). 

Perplexingly, Plaintiff’s parent ascribed an “undetermined value” to Plaintiff: 

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See id. at Ex. BA-6. 

Further, neither the Reorganization Plan nor the Disclosure Statement mentions the FCSC 

Certified Claim or the HBA Related Claims. Id. at Exs. BA-14, BA-17. One would reasonably 

expect to find such disclosure at least in the asset-vesting provisions and general reservation of 

rights (at least by type or category, such as “claims related to confiscated property” or “HelmsBurton Act claims”). But there is nothing of the sort there. See id. at Ex. BA-17, Article IV, ¶ 

D. Alternatively, Plaintiff or any of the other Hexion Debtors could have listed them by value in 

the “Preservation of Rights of Action” section. But there is nothing of that sort in that section, 

either. Id. ¶ P. Looking even more closely, the FCSC Certified Claim and the HBA Related 

Claims and their values could have been – but were not – included in the Liquidation Analysis or 

Valuation Analysis annexed to the Disclosure Statement of the bankruptcy proceeding. Id. at Ex. 

BA-17, Exs. H, I. To the contrary, the Liquidation Analysis reflected that Plaintiff had no 

balance sheet value: 

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Id. at Ex. BA-17, Ex. H. Moreover, although the Plan Supplement specifically listed “Retained 

Causes of Action,” that list did not include the Certified Claim or the HBA Related Claims 

either. Id. at Ex. BA-15. 

In short, despite having plentiful opportunities to do so, Plaintiff did not disclose the 

Certified Claim or the HBA Related Claims or their values as an asset in any disclosure made to 

the Bankruptcy Court and its creditors. And yet, these assets now are the necessary basis of the 

action Plaintiff pursues in this Court. Thus, the Complaint’s and the bankruptcy disclosures’ 

inconsistent positions concerning the existence of Plaintiff’s Certified Claim and the HBA 

Related Claims “satisfies the first prong of the judicial estoppel test.” Smith, 940 F.3d at 644. 

ii. Plaintiff’s Lack of Disclosure Amounts to Bad 

Faith and Makes a Mockery of the Judicial System 

The second element of the judicial estoppel analysis is whether the inconsistent positions 

were taken in “bad faith” or were “calculated to make a mockery of the judicial system.” 

Henderson, 782 F. App’x at 871 (citations omitted). Here, the Hexion Debtors’ intentional nondisclosure of the Certified Claim and the HBA Related Claims allowed them to play “fast and 

loose” with the Bankruptcy Court. 

Courts presume bad faith “when averments in the pleadings demonstrate both knowledge 

of a claim and a motive to conceal that claim in the face of an affirmative duty to disclose.” 

Case 1:20-cv-22471-DPG Document 54 Entered on FLSD Docket 08/31/2020 Page 32 of 46
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Krystal, 337 F.3d at 321 (establishing rebuttable inference of bad faith); Ryan, 81 F.3d at 363 

(motive to conceal may be apparent from the size of damages sought, which may have affected 

the size of the bankruptcy estate). 

Although the Eleventh Circuit does not apply an outright presumption of bad faith in such 

circumstances, it does mandate a review of “all the facts and circumstances” in order to 

determine “whether a plaintiff intended to mislead the court.” Slater, 871 F.3d at 1185–86. And 

when there are indicia of intentional misleading, the Eleventh Circuit has empowered district 

courts to find that a plaintiff intended to “make a mockery of the judicial system” and apply 

judicial estoppel. Id.; see also Henderson v. U.S. Sec. Assocs., Inc., No. 17-CV-3329, 2018 WL 

5044634, at *3 (N.D. Ga. Oct. 17, 2018), aff’d sub nom. Henderson, 782 F. App’x at 866 

(applying judicial estoppel to bar claims even where plaintiff was pro se and plaintiff had not 

initiated lawsuit until after bankruptcy). To assist district courts like this one in assessing intent, 

the Slater Court provided the following guidance: 

When the plaintiff’s inconsistent statement comes in the form of an omission in 

bankruptcy disclosures, the court may consider such factors as the plaintiff’s level 

of sophistication, whether and under what circumstances the plaintiff corrected 

the disclosures, whether the plaintiff told his bankruptcy attorney about the civil 

claims before filing the bankruptcy disclosures, whether the trustee or creditors 

were aware of the civil lawsuit or claims before the plaintiff amended the 

disclosures, whether the plaintiff identified other lawsuits to which he was a party, 

and any findings or actions by the bankruptcy court after the omission was 

discovered. 

Slater, 871 F.3d at 1185. This list of factors to consider is non-exhaustive, and the Eleventh 

Circuit has underscored the district court’s freedom “to consider any fact or factor it deems 

relevant to the intent inquiry.” Id. at n.9. 

Here, no one can dispute that the Hexion Debtors were owned pre-bankruptcy by highly 

sophisticated investors, see Hexion Inc., Annual Report for Fiscal Year Ending Dec. 31, 2018 

(Form 10-K), https://investors.hexion.com/node/13866/html#s2028C3E051CB6C12EF5415B25 

Case 1:20-cv-22471-DPG Document 54 Entered on FLSD Docket 08/31/2020 Page 33 of 46
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DB3D2EC, and that they were represented by well-qualified counsel, investment advisors and 

financial advisors. During the Bankruptcy Case, the Hexion Debtors’ bankruptcy legal advisors 

were Latham & Watkins LLP and Richards, Layton & Finger, P.A.13 Holbert Decl. Ex. A, at Ex. 

BA-17. Their financial advisor was Moelis & Company. Id. Their restructuring advisor was 

AlixPartners. Id. In addition, despite the fact that the suspension of the prohibition of Title III’s 

private right of action was lifted during the pendency of the Bankruptcy Case, there were no 

amendments addressing the Certified Claim or HBA Related Claims. See id. at Ex. BA-14 

(filing of amended Plan of Reorganization on June 20, 2019, which includes no mention of the 

Certified Claim or HBA Related Claims). In short, these parties cut a deal that they imposed on 

non-consenting creditors, the Bankruptcy Court, and the public by obtaining the Bankruptcy 

Court’s approval based on a record bare of any mention of the existence or value of the Certified 

Claim or the HBA Related Claims. 

Had the Bankruptcy Court and creditors been provided notice that the Hexion Debtors 

owned an asset now alleged to be worth treble the sum of $97.37 million and interest purportedly 

compounded over more than sixty years – more than the entire value of the bankruptcy estate – 

those creditors and the Bankruptcy Court might very well have insisted that some of that 

additional value be distributed to those junior classes.14 See In re Coastal Plains, 179 F.3d at 

205–206, 208 (holding that plaintiff was estopped from asserting undisclosed claims and stating 

13 Shortly after Plaintiff filed the bankruptcy petition, and before the Bankruptcy Court 

confirmed the Reorganization Plan, the Hexion Debtors’ bankruptcy counsel’s own firm issued a 

comprehensive client alert concerning causes of action under the Act. See Latham & Watkins 

Client Alert Commentary, 10 Things to Know: US Allows Lawsuits Relating to “Trafficking” in 

Confiscated Property in Cuba, May 3, 2019, No. 2497, available at 

https://www.lw.com/thoughtLeadership/10-Things-to-Know-US-Allows-Lawsuits-Relating-toTrafficking-in-Confiscated-Property-in-Cuba. 

14 See Holbert Decl. Ex. A, at Ex. BA-17, at Ex. A (reporting “total enterprise value of $3.1 

billion”); see id. at Ex. BA-17, at Ex. I (reporting “the midpoint of our enterprise value range is 

$3,100 million”). 

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that, “[t]he interests of both the creditors, who plan their actions in the bankruptcy proceeding on 

the basis of information supplied in the disclosure statements, and the bankruptcy court, which 

must decide whether to approve the plan of reorganization on the same basis, are impaired when 

the disclosure is incomplete”) (citation and emphasis omitted); cf. In re Pen Holdings, Inc., 316 

B.R. 495, 500–501 (Bankr. M.D. Tenn. 2004) (“at issue in § 1123(b)(3) is . . . notice to creditors 

generally that there are assets yet to be liquidated that are being preserved for prosecution by the 

reorganized debtor or its designee”). 

In analyzing this second prong it is significant that the home forum of the bankruptcy 

mandates disclosure. When a party – like Plaintiff here – has failed to make such a disclosure, it 

evidences improper intent. See BPP Illinois, 859 F.3d 188 (estopping a debtor from asserting 

claims that it failed to disclose in its prior Texas bankruptcy case because nondisclosure was 

improper in the Fifth Circuit where the bankruptcy was located). Plaintiff cannot now seek 

damages based on a Certified Claim of which it alleges to have been aware for decades, but 

denied owning when it was required to comply with the mandated duty of disclosure in 

bankruptcy. Judicial estoppel prevents Plaintiff from profiting from such a sleight of hand in the 

Bankruptcy Court and in this Court. See Krystal, 337 F.3d at 325. 

B. Plaintiff Lacks Standing to Bring this Action Due to 

Its Lack of Sufficient Disclosure in the Bankruptcy Case 

Aside from being judicially estopped from asserting the present causes of action, 

Plaintiff’s conduct in the Bankruptcy Case also deprives it of standing before (and hence subject 

matter jurisdiction in) this Court. In order for Plaintiff to have preserved the causes of action it 

now asserts related to its Certified Claim and HBA Related Claims, it must have adequately 

disclosed them in its bankruptcy proceeding. Plaintiff did not, because its sole boilerplate 

reservation did not put creditors sufficiently on notice to identify and evaluate the assets 

potentially available for distribution. Plaintiff therefore lacks standing. 

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Although the Bankruptcy Code allows debtors to reserve causes of action to a postbankruptcy representative of the estate, see 11 U.S.C. § 1123(b)(3), “the reservation [by the plan] 

[must] be worded sufficiently to ‘allow creditors to identify and evaluate the assets potentially 

available for distribution.’” In re Transit Grp., Inc., 332 B.R. 45, 57 (Bankr. M.D. Fla. 2005) 

(citing Pen Holdings, 316 B.R. at 504). “After confirmation . . . the ability of the [debtor] to 

enforce a claim once held by the estate is limited to that which has been retained in the plan.” In 

re United Operating, LLC, 540 F.3d 351, 356–57 (5th Cir. 2008) (holding that “[i]f a debtor has 

not made an effective reservation, the debtor has no standing to pursue a claim that the estate 

owned before it was dissolved”) (citation omitted; alteration in original). Absent identification 

of the type and category or value of a known cause of action, courts are in accord that 

Bankruptcy Code Section 1141, which vests assets in the post-petition debtor, does not overcome 

the disclosure required under Section 1123(b)(3) so as to reserve standing to pursue the 

undisclosed cause of action post-petition. E.g., Harstad v. First Am. Bank, 39 F.3d 898, 903 (8th 

Cir. 1994) (without satisfying the notice requirement of 1123(b)(3) by putting creditors on notice 

of claims the debtor intends at the time of the case to pursue post-petition, plan does not vest 

post-confirmation debtor with standing to pursue those claims); In re Ice Cream Liquidation, 

Inc., 319 B.R. 324, 333 (Bankr. D. Conn. 2005) (“[I]f the Plan contains the requisite provision 

[reserving a cause of action], the Debtor has standing . . . However, if an adequate Plan provision 

is lacking, the Debtor lacks standing.”).15

15 Moreover, because the Certified Claim and the HBA Related Claims were not scheduled, 

those assets were neither administered in the Bankruptcy Case nor abandoned to the 

“Reorganized” Hexion Debtors, and thus they remain “property of the estate.” See Jacobs v. A-C 

Prod. Liab. Tr., No. 09-CV-30143, 2015 WL 5818388, at *6 (E.D. Pa. Oct. 6, 2015) (citing 

Allston-Wilson v. Philadelphia Newspapers, Inc., No. CIV.A. 05-4056, 2006 WL 1050281, at *1 

(E.D. Pa. Apr. 20, 2006)) ( “Pursuant to 11 U.S.C. § 554(d), a cause of action, which a debtor 

fails to schedule, remains property of the estate because it was not abandoned and not 

administered.”); In re Kane, 628 F.3d 631, 637 (3d Cir. 2010) (same). 

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Courts apply slightly varied standards to determine whether plan provisions reserving 

causes of action and vesting assets in post-bankruptcy entities are sufficiently worded to be 

effective. 16 Generally, however, reservations and asset-vesting provisions are held to be 

sufficiently informative only if they specifically “indicat[e] the type or category of claims to be 

preserved.” In re Ampace Corp., 279 B.R. 145, 155 (Bankr. D. Del. 2002) (finding a categorical 

reservation is sufficient to preserve avoidance actions that may be so numerous that precise 

identification prior to confirmation is onerous); In re USN Commc’ns, Inc., 280 B.R. 573, 593 

(Bankr. D. Del. 2002). 17 In In re Bridgeport Holdings, the bankruptcy court held that 

preservation of causes of action for post-confirmation adjudication requires “clear and 

unambiguous retention provisions . . . that specify the category of causes of action to be 

preserved and the potential effect of the pursuit of those causes of action.” 326 B.R. 312, 327 

(Bankr., D. Del. 2005). Id. The Bridgeport Holdings court found categorical identification of 

avoidance actions to be sufficient, but distinguished numerous cases in which debtors’ failure to 

specifically identify knowable, existing non-bankruptcy claims were barred by res judicata, 

judicial estoppel, and lack of standing. Id. As one court framed the question: “[T]he words 

sufficient to satisfy § 1123(b)(3) must be measured in the context of each case and the particular 

claims at issue: Did the reservation allow creditors to identify and evaluate the assets potentially 

available for distribution?” Pen Holdings, 316 B.R. at 504. Here, the answer to that question is 

a resounding “no.”

16 The bankruptcy court’s decision in In re Hart Oil & Gas, Inc., 534 B.R. 35, 48 (Bankr. 

D.N.M. 2015) provides a comprehensive summary of the various standards and the 

circumstances in which each applies. 

17 “The uniformity requirement of the bankruptcy clause forbids . . . arbitrary regional 

differences in the provisions of the Bankruptcy Code.” In re Mosaic Mgmt. Grp., Inc., 614 B.R. 

615, 624 (Bankr. S.D. Fla. 2020) (quotations and citations omitted).

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The Complaint’s fifty-eight pages and 245 paragraphs recite the history, knowledge, and 

alleged value of the Certified Claim and the HBA Related Claims in which Plaintiff purports to 

have held an interest as early as 1969. The contents and detail of the pleading – filed a mere 

months after Plaintiff’s successful bankruptcy reorganization – confirms that the Hexion Debtors 

were long ago fully aware of the specific causes of action Plaintiff asserts here. E.g., Compl. ¶ 7 

(alleging that American Sugar certified its claim for confiscated property back in 1969 and that 

since 1996 it was known that business dealings with Cuba raised liability risks); id. ¶ 91 

(referencing a 2017 report (notably pre-Hexion Bankruptcy) on defendants’ activities in Cuba). 

Yet in the schedules filed with the Bankruptcy Court, Plaintiff and the other Hexion Debtors did 

no more than assert boilerplate language allegedly reserving generic “causes of action.” See

Holbert Decl. Ex. A, at Exs. BA-5–BA-8. 

Notably, the Reorganization Plan’s use of the phrase “causes of action” makes no 

reference to claims of the sort asserted in the Complaint (e.g., rights or causes of action created 

by the Certified Claim or Title III) and does not even suggest a potential litigation right to 

damages for trafficking in property confiscated by Cuba. Id. at Ex. BA-14. Nor was there any 

reference even to litigation rights created by federal law in general other than avoidance actions 

and defenses under the Bankruptcy Code. Id. The closest to any kind of disclosure is in the 

Global Notes to the Schedules, as “General Disclosures Applicable to Schedules and 

Statements,” where each of the Hexion Debtors, including Plaintiff, included the following 

pattern language regarding “Causes of Action” – which cagily avoided addressing the issue at 

all: 

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See id. at Ex. BA-5; see also BA-6–BA-8. That was patently insufficient to preserve the causes 

of action Plaintiff seeks to assert now, and thus, Plaintiff lacks standing to assert those claims. 

See, e.g., In re Ampace, 279 B.R. at 155. 

III. Plaintiff Fails to State a Claim for 

Trafficking in the “Confiscated Property” 

Plaintiff’s Complaint should also be dismissed under Rule 12(b)(6) for failure to state a 

claim. More basically, the Complaint fails to allege facts plausibly showing that Defendants 

knowingly and intentionally trafficked in the Confiscated Property; it only alleges facts that the 

Defendants trafficked in the Confiscated Port. 

Under Title III, “any person that . . . traffics in property which was confiscated by the 

Cuban Government on or after January 1, 1959, shall be liable to any United States national who 

owns the claim to such property.” 22 U.S.C. § 6082(a)(1)(A) (emphasis added). To be liable 

under Title III, a person must “traffic[] . . . in such property.” Glen v. Club Mediterranee S.A., 

365 F. Supp. 2d 1263, 1269 (S.D. Fla. 2005) (“Title III permits any U.S. national ‘who owns a 

claim to such [confiscated] property for money damages’ to sue those who traffic in such 

property.” (alteration in original; emphasis added and citation omitted)); see also DeMeo v. State 

Farm Mut. Auto. Ins. Co., 639 F.3d 413, 416 (8th Cir. 2011) (quoting New Oxford American 

Dictionary 1738 (3d ed. 2010) (“The plain meaning of the modifier ‘such’ is, ‘of the type

previously mentioned.’”). There must be facts alleging that Defendants “traffic[ked]...in such 

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property” that Plaintiff claims is the basis for its damages. The Complaint alleges no facts that 

Defendants “trafficked in” the Confiscated Property for which Plaintiff claims $97.37 million in 

damages; at most, the Complaint only alleges Defendants trafficked in only the Confiscated Port, 

which the FCSC valued at $2.228 million. Compl., Ex. 1 at 14. 

Under the Act, “a person ‘traffics’ in confiscated property if that person knowingly and 

intentionally . . . engages in a commercial activity using or otherwise benefiting from 

confiscated property.” 22 U.S.C. § 6023(13) (emphasis added); see also Glen, 2020 WL 

4464665, at *6 (“To commit trafficking under the Act, a person must know that the property was 

confiscated by the Cuban government and intend that such property be the subject of their 

commercial behavior.”). To state a claim under Title III, Plaintiff must allege that Defendants 

engaged in commercial activity using or benefitting from the assets identified as the Confiscated 

Property and that each Defendant did so “knowingly and intentionally.” Plaintiff has not.

The Confiscated Property includes “various Cuban corporate subsidiaries and their 

numerous assets across Cuba,” including the dozens of assets described in the Certified Claim. 

See Compl. ¶¶ 64–66, 69. These assets include, for example, harvested lands and work animals 

as well as hundreds of thousands of acres of real properties. See generally, Compl., Ex. 1. But 

absent from the Complaint are any factual allegations that Defendants trafficked in, used, or 

otherwise benefitted from any of these assets. Indeed, of the dozens of assets enumerated in 

Plaintiff’s Certified Claim, and therefore included in Plaintiff’s definition of Confiscated 

Property, Plaintiff only alleges that Defendants “trafficked in” Puerto Carupano.18 As for the 

balance of the Confiscated Property, Plaintiff pleads only conclusory allegations that merely 

recite the elements of a Title III cause of action. See Compl. ¶¶ 197, 215, 229. (“[Defendant] 

“knowingly and intentionally: (1) used the Confiscated Property, (2) engaged in commercial 

18 Defendants deny they knowingly and intentionally trafficked in Puerto Carupano and 

only accept those allegations as true for the purpose of this Motion. 

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activity in using or otherwise benefitting from the Confiscated Property; and/or (3) caused, 

directed, participated in, and profited from the trafficking . . . or otherwise engaged in such 

trafficking through another person.”). These conclusory allegations are plainly insufficient to 

state a claim for relief. See Twombly, 550 U.S. at 545 (“a formulaic recitation of a cause of 

action's elements will not do”); Iqbal, 556 U.S. at 678 (Rule 8 requires more than “naked 

assertions devoid of further factual enhancement.”).

Not only does Plaintiff fail to allege facts that Defendants trafficked in the assets listed in 

the Certified Claim (except Puerto Carupano), Plaintiff also fails to allege facts showing that 

Defendants trafficked in those assets “knowingly and intentionally” – as it must to state a Title 

III claim. 22 U.S.C. § 6082 (requiring that a party “knowingly and intentionally” engaged in 

prohibited trafficking); see also Glen, 2020 WL 4464665, at *6 (“To commit trafficking under 

the Act, a person must know that the property was confiscated by the Cuban government and 

intend that such property be the subject of their commercial behavior.”). Plaintiff alleges no 

facts showing that Defendants knew of and intended for the dozens of assets identified in the 

Certified Claim – i.e., the Confiscated Property at large – to be the subject of their commercial 

activity. Rather, as to the Confiscated Property, the Complaint just restates the “knowingly and 

intentionally” trafficking element by parroting the statutory language. See Compl. ¶¶ 197, 215, 

229. The Complaint’s conclusory, one-paragraph allegation in each of its first three causes of 

action, Compl. ¶¶ 197, 215, 229, without more, fails to state a claim for relief for trafficking in 

the Confiscated Property. See id.; see Gonzalez v. Amazon.com, Inc., No. 19-23988-CIV, 2020 

WL 1169125, at *2 (S.D. Fla. Mar. 11, 2020) (citing Twombly, 550 U.S. at 557) (holding that 

allegations that a defendant “knowingly and intentionally participated in and profited from the 

communist Cuban Government’s possession of the Subject Property” were conclusory and 

Case 1:20-cv-22471-DPG Document 54 Entered on FLSD Docket 08/31/2020 Page 41 of 46
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therefore insufficient to state a claim); see also Michel v. NYP Holdings, Inc., 816 F.3d 686, 694 

(11th Cir. 2016) (“knowledge [and] intent” are “subject to the plausibility pleading standard”).

By failing to make a single factual allegation that Defendants trafficked in the 

Confiscated Property (other than Puerto Carupano), Plaintiff has failed to “nudge [its] claims 

across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Absent allegations of 

trafficking in those assets – an essential element of pleading a claim under the Act – those 

dozens of assets cannot form the basis for Plaintiff’s Title III claim. See Iqbal, 556 U.S. at 679 

(“While legal conclusions can provide the framework of a complaint, they must be supported by 

factual allegations.”). Accordingly, Plaintiff’s Title III claim for more than $97.37 million based 

on the value of the assets contained in the Certified Claim – all of the Confiscated Property – 

should be dismissed because Plaintiff has failed to plead factual allegations to support the basic 

elements of a Title III cause of action. 

IV. Plaintiff Is Precluded From Bringing a Count Under 

the Act Along with a Common-Law Count for Conspiracy 

Plaintiff’s Complaint should also be dismissed because the Act makes clear that a 

plaintiff may not pursue actions both under the Act and under a common law theory, as Plaintiff 

attempts to do here. 22 U.S.C. § 6082(f). This subsection of the Act, titled “Election of 

Remedies,” states: 

Election – Subject to paragraph (2) – 

(A) any United States national that brings an action under this section may not 

bring any other civil action or proceeding under the common law, Federal law, or 

the law of any of the several States, the District of Columbia, or any 

commonwealth, territory, or possession of the United States, that seeks monetary 

or nonmonetary compensation by reason of the same subject matter; and 

(B) any person who brings, under the common law or any provision of law other 

than this section, a civil action or proceeding for monetary or nonmonetary 

compensation arising out of a claim for which an action would otherwise be 

cognizable under this section may not bring an action under this section on that 

claim. 

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Id. By its plain terms, then the Act prohibits a plaintiff from bringing both a claim under Title III 

and a claim “under the common law or any provision of law other than” Title III. But here, 

Plaintiff alleges causes of action under both Title III (its trafficking counts) and the common law 

(its conspiracy count). Compl. ¶¶ 189–245 (alleging one cause of action under Title III against 

each of three Defendant groups and a fourth cause of action against all Defendants for commonlaw conspiracy). This is impermissible. BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 

(2004) (noting that statutory interpretation begins with the text and “ends there as well if the text 

is unambiguous”). 

In analogous contexts, courts in the Eleventh Circuit have strictly enforced similar 

election of remedies provisions. For instance, the Northern District of Alabama has routinely 

dismissed actions in which a plaintiff advances causes of action under both the Alabama Age 

Discrimination in Employment Act (the “AADEA”) and the federal Age Discrimination in 

Employment Act (the “ADEA”). Forsyth v. NHC Place/Anniston, LLC, Inc., No. 18-CV-00663, 

2018 WL 4909953, at *2 (N.D. Ala. Oct. 10, 2018) (dismissing duplicative state law claim, 

collecting cases, and holding that “[t]he statute intends to create an alternative remedy, not 

merely to avoid redundant adjudications . . . The entirety of the statute persuades this court to 

interpret § 25-1-29 [the AADEA] to mean that plaintiffs must ‘elect to pursue their remedies 

under [the ADEA] or in the alternative’ bring a state law claim under the AADEA”) (emphasis 

in original).19

19 See also Henry v. Jefferson Cnty. Personnel Bd., 519 F. Supp. 2d 1171, 1185–86 (N.D. 

Ala. 2007) (holding that “the plain language of the Alabama Age Act forces a plaintiff 

choose either suit under the ADEA or, in the alternative, suit under the Alabama Age Act”) 

(emphasis in original); Howard v. Highlands Med. Ctr., No. 15-CV-00393-CLS, 2015 WL 

4730079, at **3–4 (N.D. Ala. Aug 10, 2015) (same); King v. Adtran, Inc., No. 13-CV-1362-

CLS, 2014 WL 6983312, at *6 (N.D. Ala. Dec. 10, 2014) (same); Collins v. Compass Grp., Inc., 

965 F. Supp. 2d 1321, 1330–31 (N.D. Ala. 2013) (same). 

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34 

Here, Plaintiff’s counts are overlapping and precisely the kind of double-pleading that the 

Act prohibits.20 Plaintiff has asserted a cause of action (1) against each Defendant for trafficking 

in Plaintiff’s property in violation of the Act, and (2) against all Defendants for allegedly 

conspiring to do so. Compl. ¶¶ 237–45. For the latter, Plaintiff alleges no fact that is unique to 

that count, and in fact incorporates all prior allegations concerning each other count brought 

under the Act. Id. ¶ 237. The viability of this claim is thus inherently dependent on whether 

Defendants’ alleged conduct does in fact constitute “trafficking” under the Act. And this claim 

is not only premised on the same factual allegations asserted in the other counts – it also seeks 

precisely the same relief: damages under the Act “in the amount of the certified claim, plus 

applicable pre-judgment interest.” Id. ¶ 245; see also id. ¶¶ 206, 220, 236 (seeking same 

damages in each count under the Act). 

Plaintiff’s Complaint thus violates the express provisions of the Act and, therefore, 

should be dismissed. 

CONCLUSION 

For the foregoing reasons, the Court should enter an Order granting this Motion and 

dismissing the Complaint with prejudice. 

20 In similar fashion, courts in this District routinely dismiss causes of action where the 

relief sought in one cause of action is duplicative of others and the requirements for proving 

those claims overlap. E.g., AquaDry Plus Corp. v. Rockhill Ins. Co., No. 19-CV-62331-CIV, 

2020 WL 927440, at *3 (S.D. Fla. Feb. 26, 2020) (dismissing claim for declaratory relief claim 

where plaintiff also asserted a breach of contract claim, the determination of which would “allow 

[plaintiff] to secure complete relief.”); A&M Mgmt. Inc. v. Deme, No. 18-CV-63099, 2019 WL 

7344821, at *5 (S.D. Fla. May 14, 2019) (citations omitted) (dismissing claims for “unjust 

enrichment” and “money had and received” as duplicative and observing that “[d]uplicative 

claims are those that stem from identical allegations, that are decided under identical legal 

standards, and for which identical relief is available”); Miller v. Gizmodo Media Grp., LLC, No. 

18-24227-CIV, 2019 WL 1790248, at *12 (S.D. Fla. Apr. 24, 2019), reconsideration 

denied, 2019 WL 5864176 (S.D. Fla. June 5, 2019) (citations omitted) (dismissing civil 

conspiracy count because it “is premised on the same allegations and the same torts asserted 

elsewhere in the complaint”) (citations omitted). 

Case 1:20-cv-22471-DPG Document 54 Entered on FLSD Docket 08/31/2020 Page 44 of 46
35 

Dated: August 31, 2020. 

Respectfully submitted, 

Pedro A. Freyre 

Florida Bar No.: 192140 

Email: pedro.freyre@akerman.com 

Naim S. Surgeon 

Florida Bar No.: 101682 

Email: naim.surgeon@akerman.com 

AKERMAN LLP 

Three Brickell City Centre 

98 Southeast Seventh Street, Suite 1100 

Miami, Florida 33131 

Telephone: (305) 374-5600 

Facsimile: (305) 349-4654 

Martin Domb 

(pro hac vice admission pending) 

Email: martin.domb@akerman.com 

AKERMAN LLP 

520 Madison Ave. 

20th Floor 

New York, New York 10022 

Telephone: (212) 880-3880 

Facsimile: (212) 880-8965 

By: /s/ Pedro A. Freyre

Attorneys for Defendants 

BBC Chartering USA, LLC and 

BBC Chartering Singapore Pte Ltd.

HOGAN LOVELLS US LLP 

600 Brickell Avenue 

Suite 2700 

Miami, Florida 33131 

Telephone: (305) 459-6500 

Facsimile: (305) 459-6550 

By: /s/ Allen P. Pegg

Allen P. Pegg 

Fla. Bar No. 597821 

allen.pegg@hoganlovells.com 

Richard C. Lorenzo 

Fla. Bar No. 071412 

richard.lorenzo@hoganlovells.com

 Reginald Cuyler Jr. 

 Fla. Bar No. 114062 

 reginald.cuyler@hoganlovells.com 

Counsel for Goldwind International 

 Holdings (HK) Ltd.

Case 1:20-cv-22471-DPG Document 54 Entered on FLSD Docket 08/31/2020 Page 45 of 46
36 

Robert M. Brochin 

Florida Bar No. 0319661 

bobby.brochin@morganlewis.com 

Matthew Papkin 

Florida Bar No. 106565 

matthew.papkin@morganlewis.com 

Sarah J. Cohen 

Florida Bar No. 1010683 

sarah.cohen@morganlewis.com 

Morgan, Lewis & Bockius LLP 

200 South Biscayne Boulevard 

Suite 5300 

Miami, Florida 33131-2339 

Telephone: 305.415.3000 

Facsimile: 305.415.3001 

By:/s/ Robert M. Brochin 

John M. Vassos (admitted pro hac vice) 

john.vassos@morganlewis.com 

101 Park Avenue 

New York, NY 10178 

Telephone: 212.309.6000 

Facsimile: 212.309.6002 

Carl A. Valenstein (admitted pro hac vice) 

carl.valenstein@morganlewis.com 

One Federal Street 

Boston, MA 02110 

Telephone: 617.341.7700 

Facsimile: 617.341.7701 

Counsel for Defendant 

DSV AIR & SEA, INC.

CERTIFICATE OF SERVICE 

I hereby certify that on August 31, 2020, the foregoing was filed with the Clerk of Court 

using CM/ECF, which will serve a Notice of Electronic Filing on all counsel of record.

By: /s/ Allen P. Pegg 

Case 1:20-cv-22471-DPG Document 54 Entered on FLSD Docket 08/31/2020 Page 46 of 46