1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 20-cv-22471-GAYLES/OTAZO-REYES

NORTH AMERICAN SUGAR INDUSTRIES INC.,

Plaintiff,

v.

XINJIANG GOLDWIND SCIENCE &

TECHNOLOGY CO., LTD., et al.,

Defendants. 

 /

ORDER

THIS CAUSE comes before the Court on Defendants’ Motion to Dismiss Complaint (the 

“Motion”) [ECF No. 54]. The Court has reviewed the Motion and the record and is otherwise fully 

advised. For the reasons set forth below, the Motion shall be granted in part.

BACKGROUND

This action is one of several that United States nationals, including Plaintiff North 

American Sugar Industries Inc., have filed following the Trump Administration’s activation of 

Title III of the Cuban Liberty and Democratic Solidarity Act of 1996, 22 U.S.C. § 6021, et seq.

(the “Act”) on May 2, 2019. In each of these actions, the plaintiffs seek compensation under the 

Act from defendants who have profited from using property in Cuba that plaintiffs owned before 

the Cuban revolution. Here, Defendants Goldwind International Holding (HK) Ltd. (“Goldwind 

International”), Xinjiang Goldwind Science & Technology Co., Ltd. (“Goldwind Science”)1

, DSV 

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

1 When Goldwind International, DSV, BBC USA, and BBC Singapore filed the Motion, Plaintiff had not served

Goldwind Science with the Complaint. On June 4, 2021, following service, Goldwind Science filed a notice that it 

joined in the Motion. [ECF No. 108].

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Singapore PTE LTD (“BBC Singapore”) (collectively the “Defendants”) have moved to dismiss 

arguing Plaintiff lacks standing and fails to state a claim. 

I. Plaintiff’s Claim to Property Confiscated by the Cuban Government

For the fifty years leading up to the Cuban revolution, Plaintiff owned and operated a large

sugar production and refining enterprise in Cuba. [ECF No. 1 ¶ 19]. Plaintiff’s assets in Cuba 

included land, crops, farm buildings, power-generation systems, a railroad, and commercial 

shipping ports including Puerto Carupano (collectively the “Confiscated Property”). Id. ¶¶ 2, 63, 

& 65. On July 20, 1960, the Cuban government expropriated the Confiscated Property, and 

Plaintiff stopped its operations in Cuba. Id. at ¶¶ 69–70.

In 1964, Congress established the Cuba Claims Program under which the United States 

Foreign Claims Settlement Commission (“FCSC”) would determine the validity and amount of 

claims by United States nationals against the Cuban government for losses resulting from the 

expropriation of their property. 22 U.S.C. § 1643b(a). On March 26, 1969, FCSC certified that 

Plaintiff suffered losses in the amount of $97,373,414.72 resulting from the Cuban government’s 

expropriation of the Confiscated Property (the “Certified Claim”). [ECF No. 1-1 at 21]. Of the $97 

million Certified Claim, FCSC valued Plaintiff’s loss of Puerto Carupano at $2,228,000.00. Id at 

14.

II. Congress Passes the Act

In 1996, Congress passed the Act, in part, to deter trafficking in property wrongly 

confiscated by the Cuban government. 22 U.S.C. § 6081. To achieve this purpose, Congress 

established “a new statutory remedy available (if not suspended) to ‘United States nationals who 

were the victims of these confiscations . . . [to] deny traffickers any profits from economically 

exploiting Castro’s wrongful seizures.’” Glen v. Club Mediterranee, S.A., 450 F.3d 1251, 1255 

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(11th Cir. 2006) (quoting 22 U.S.C. § 6081(11)). Under the Act, “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 for money damages . . 

. .” 22 U.S.C. § 6082(a)(1)(A). Claims certified by the FCSC are presumed to be “the amount for 

which a person is liable.” 22 U.S.C. § 6082(a)(2).

The Act includes a provision which grants the President the ability to suspend the right to 

bring a private action under it for successive six-month periods. 22 U.S.C. § 6085(c). From its 

enactment in 1996 until 2019, every President suspended the Act’s private action provision. On 

May 2, 2019, President Trump allowed the suspension to expire and opened the door for this 

action.

III. The Herradura Wind Farm Project

The Cuban government is constructing a large-scale wind power project (the “Project”)

located in the Cuban province of Las Tunas, about 15 miles from Puerto Carupano. [ECF No. 1 

¶ 82].2 The Project will house 54 wind turbines and is expected to significantly increase Cuba’s 

renewable energy capacity. Id. at ¶ 85. Equipment for the Project is imported through Puerto 

Carupano. Id. at ¶ 82.

Goldwind International contracted with Cuba’s Ministry of Energy and Mining to supply 

the Project with wind turbines and other equipment. Id. at ¶ 88. Goldwind International and 

Goldwind Science worked with shipping carriers DSV, BBC USA, and BBC Singapore to

transport equipment to Cuba for the Project. Id. at ¶ 103. Specifically, Plaintiff contends that in 

late 2018 and early 2019, Defendants coordinated two shipments of equipment for use in the 

2 Plaintiff does not allege that the Project is located on the Confiscated Property.

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Project that were delivered and unloaded at Puerto Carupano.

3 Id. at ¶¶ 104–88. Plaintiff also 

alleges—without any additional detail—that multiple other shipments of equipment from 

Goldwind Science and Goldwind International arrived at Puerto Carupano for use in the Project.

Id. at ¶ 184.

IV. The Bankruptcy Proceeding

In their Motion, Defendants allege that on April 1, 2019, Plaintiff, Plaintiff’s 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 Proceeding”). [ECF No. 54].4 According to Defendants, Plaintiff did not 

mention the Certified Claim or any Act related claims in its filings for the Bankruptcy Proceeding. 

Id. On June 25, 2019, the bankruptcy court confirmed the Hexion Debtors’ Reorganization Plan, 

which became effective on July 1, 2019.

V. This Action

On June 15, 2020, Plaintiff filed this action against Defendants for violations of the Act 

(Counts 1-3) and for conspiracy under Florida law (Count IV). [ECF No. 1]. Plaintiff alleges that 

Defendants trafficked in and benefited from the Confiscated Property by supplying and/or 

coordinating the shipment of equipment that they knew or had reason to know would be unloaded 

at Puerto Carupano without Plaintiff’s authorization. Id. at ¶¶ 103, 204, 218, & 234. 

Defendants now jointly move to dismiss the Complaint, alleging (1) Plaintiff lacks Article 

III standing; (2) Plaintiff’s failure to disclose its Certified Claim and its Act-related claims in the

3 Plaintiff alleges that Defendants hid their travel from United States Authorities at the Miami Seaport to circumvent 

Cuban sanction regulations. See [ECF No. 1, ¶¶ 120-22, 128-130, 136, 144, & n. 24]. 4 Defendants attached pleadings from the Bankruptcy Proceeding to their Motion. [ECF Nos. 54-2—54-18].

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Bankruptcy Proceeding bar this action; and (3) Plaintiff fails to state a claim. [ECF No. 54].5 As 

set forth below, the Court finds that Plaintiff has adequately alleged its Article III standing to bring 

this action. However, because the Court finds that the Complaint is a shotgun pleading, it does not 

address whether Plaintiff has adequately alleged the elements of its claims or whether the 

Bankruptcy Proceeding has any impact on this litigation.

LEGAL STANDARD

A motion to dismiss for lack of subject matter jurisdiction brought pursuant to Federal Rule 

of Civil Procedure 12(b)(1) may present either a facial or a factual challenge to the complaint. See

McElmurray v. Consol. Gov’t, 501 F.3d 1244, 1251 (11th Cir. 2007). In a facial challenge, a court 

is required only to determine if the plaintiff has “sufficiently alleged a basis of subject matter 

jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.”

Id. at 1251 (internal quotation omitted). By contrast, a factual attack “challenge[s] the existence of 

subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings

. . . are considered.” Id. Defendants’ Motion launches a facial attack on Plaintiffs’ standing.

DISCUSSION

I. Standing

“Article III of the Constitution limits federal courts to deciding ‘Cases’ or ‘Controversies.’”

Muranksy v. Godiva Chocolatier, Inc., 979 F.3d 917, 924 (11th Cir. 2020) (en banc) (citing U.S. Const. 

art. III, § 2). The doctrines of standing, ripeness, and mootness govern whether an action presents an 

actual case or controversy. Id. At issue here is the doctrine of standing. 

Standing “is a threshold question that must be explored at the outset of any case.” Corbett v. 

Transp. Sec. Admin, 930 F.3d 1225, 1232 (11th Cir. 2019). It is not a “mere pleading requirement[] 

5 Defendants have also filed separate motions to dismiss for lack of personal jurisdiction. See [ECF Nos. 48, 52, 53, 

& 107].

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but rather an indispensable part of the plaintiff’s case . . . .” Lujan v. Defenders of Wildlife, 504 U.S. 

555, 561 (1992). To establish Article III standing, “[t]he plaintiff must have (1) suffered an 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, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing

Lujan, 504 U.S. at 560–61). “In plainer language, the plaintiff needs to show that the defendant harmed 

him, and that a court decision can either eliminate the harm or compensate for it.” Muranksy, 979 F.3d 

at 924.

A. Injury-In-Fact

Injury in fact is “the ‘[f]irst and foremost’ of standing’s three elements.” Spokeo, 136 S. Ct. at 

1547 (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 103 (1998)). To demonstrate 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). “At the pleading stage of a case, ‘general factual allegations of injury’ 

can suffice.” Muranksy, 979 F.3d at 924 (quoting Lujan, 504 U.S. at 561). 

1. Legally Protected Interest

“No legally cognizable injury arises unless an interest is protected by statute or otherwise.” 

Havana Docks Corp. v. MSC Cruises SA Co., 484 F. Supp. 3d 1177, 1191 (S.D. Fla. 2020) (quoting 

Cox Cable Commc’ns, Inc. v. United States, 992 F.2d 1178, 1182 (11th Cir. 1993)).6 “That interest 

must consist of obtaining compensation for, or preventing, the violation of a legally protected 

right.” Id. (internal citations and quotations omitted). Here, Plaintiff’s legally protected interest 

6 In September 2020, United States District Judge Beth Bloom issued orders finding Plaintiff Havana Docks 

Corporation had standing in three related Helms Burton Act cases in this district filed against cruise ship operators 

docking in Cuba. Havana Docks Corp. v. MSC Cruises SA Co., 484 F. Supp. 3d 1177 (S.D. Fla. 2020); Havana Docks 

Corp. v. Norwegian Cruise Line Holdings, Ltd., 484 F. Supp. 3d 1215 (S.D. Fla. 2020); Havana Docks Corp. v. 

Carnival Corp., No. 19-CIV-21724, 2020 WL 5517590 (S.D. Fla. Sept. 14, 2020) (the “Havana Docks cases”). The 

Court cites to the Havana Docks v. MSC Cruises order, but the holdings in all the Havana Docks cases are the same.

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arises from the Act, under which “trafficking in confiscated property is an invasion of a legally 

protected interest—i.e. a statutorily constructed property interest in the Subject Property, which 

conveys a right to prevent third-party use of the same.” Id. (emphasis in original).

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2. Concrete

Though Plaintiff has alleged an invasion of a legally protected interest, it must still allege 

that it has suffered a concrete injury. Salcedo v. Hanna, 936 F.3d 1162, 1167 (11th Cir. 2019).8 A 

concrete injury is “real” and not “abstract.” Spokeo, 136 S. Ct. at 1548; see also Muransky, 979 

F.3d at 925 (“A lot of ink has been spilled to explain what concrete means, but the best word may 

also be the simplest–‘real.’”) (quoting Spokeo, 136 S. Ct. at 1548).

“The Supreme Court has explained that “[c]entral to assessing concreteness is whether the 

asserted harm has a ‘close relationship’ to a harm traditionally recognized as providing a basis for 

a lawsuit in American courts—such as physical harm, monetary harm, or various intangible 

harms.’” Glen v. American Airlines, Inc., No. 20-10903, 2021 WL 3285307, at *2 (5th Cir. Aug. 

2, 2021). Here, Plaintiff alleges that it was harmed when Defendants used Puerto Carupano for 

their own profit and without authorization from, or “a speck of compensation” to, Plaintiff. [ECF 

No. 1 ¶¶ 1, 7, 11]. This harm “bears a close relationship to unjust enrichment, which has 

indisputable common-law roots.” Glen, 2021 WL 3285307, at *2. Indeed, Congress passed the 

Act, in part, because it found the remedies for “unjust enrichment from the use of wrongfully 

confiscated property . . . by private entities at the expense of the rightful owners of the property”

to be ineffective. 22 U.S.C. § 6081(8). See Havana Docks, 484 F. Supp. 3d at 1192 (finding a 

7 While the act of state doctrine generally requires courts to assume the validity of a foreign sovereign’s public actions 

on its own soil, such as the Cuban government’s expropriation of property, “the Act reverses that assumption by 

abrogating the act-of-state doctrine in cases such as this.” Glen v. American Airlines, Inc., No. 20-10903, 2021 WL 

3285307, at * 3 (5th Cir. Aug. 2, 2021).

8 Plaintiff’s injury must also be particularized and actual or imminent. See Spokeo, 136 S. Ct. at 1547. It is undisputed, 

and the Court agrees, that Plaintiff’s alleged injury is particularized and actual.

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concrete injury where the plaintiff “allege[d] that [defendant] profited from its use of the Subject 

Property at [plaintiff’s] expense.”). Accordingly, the Court finds that Plaintiff has alleged a 

concrete harm.

B. Traceability

To have standing, Plaintiff must also show that its injuries are “fairly traceable” to 

Defendants’ use of Puerto Carupano. Spokeo, 136 S. Ct. at 1547. “To show traceability, a plaintiff 

must allege that his injury is ‘connect[ed] with the conduct about which he complains.’” Glen, 2021 

WL 3285307 (quoting Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018)). Plaintiff alleges that 

Defendants profited from their use of Puerto Carupano without compensating Plaintiff. See [ECF 

No. 1 ¶¶ 1, 7, 11]. Accordingly, like in Glen and the Havana Docks cases, “there exists a direct 

causal link between a claimant’s injury from the Cuban Government’s expropriation of their 

property and a subsequent trafficker’s unjust enrichment from its use of that confiscated property.” 

Havana Docks, 484 F. Supp. 3d at 1230. Therefore, the Court finds Plaintiff has adequately alleged 

traceability.

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C. Redressability

“The element of redressability requires that ‘it must be likely, as opposed to merely 

speculative, that the injury will be redressed by a favorable decision.’” Hollywood Mobile Estates, 

Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1266 (11th Cir. 2011) (quoting Lujan, 504 U.S. at 

561)). The parties do not dispute, and the Court agrees, that the element of redressability is properly 

alleged here. Accordingly, Plaintiff has sufficiently established, at this stage of the litigation, that 

9 While Plaintiff has adequately alleged traceability, the Court notes that Defendants raise legitimate merits-based 

arguments regarding the purported amount of Plaintiff’s damages. Relying exclusively on the Act, Plaintiff alleges 

that its harm should be valued at the full amount of its Certified Claim. Yet the Complaint details only two shipments 

made by Defendants and that Defendants only touched Puerto Carupano—not all the Confiscated Property. However, 

this dispute over the amount of Plaintiff’s actual damages does not affect Plaintiff’s standing.

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it has standing, and the Motion shall be denied on this ground.

II. Bankruptcy Proceeding

Defendants argue that Plaintiff’s failure to disclose its Certified Claim or Act-related 

claims in the Bankruptcy Proceeding bars this action. The Court finds that it is premature to address 

these issues.

First, Defendants allege that Plaintiff is judicially estopped from bringing this action 

because it did not disclose the Certified Claim or Act-related claims in the Bankruptcy Proceeding. 

“[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 the plaintiff’s 

pursuit of the civil lawsuit and (2) intended to make a mockery of the judicial system.” Slater v. 

United States Steel Corp., 871 F.3d 1174, 1180 (11th Cir. 2021). To make this determination, the 

Court must “consider all the facts and circumstances in determining whether the plaintiff acted 

with the intent to make a mockery of the judicial system.” Id. Even if the Court were to take judicial 

notice at this juncture of Plaintiff’s bankruptcy filings,10 it cannot resolve the fact-intensive inquiry 

into Plaintiff’s intent on a motion to dismiss. Indeed, as an affirmative defense, judicial estoppel 

is best addressed following discovery on a motion for summary judgment. See Allen v. Senior 

Home Care, No. 14-81408, 2015 WL 1097408 at * 2 (S.D. Fla. Mar. 11, 2015) (holding that the 

court could not rule on the defendant’s affirmative defense of judicial estoppel at the motion to 

dismiss stage).

10 Defendants ask the Court to take judicial notice of some of the documents filed in the Bankruptcy Proceeding. The 

Court declines to do so at this stage of the litigation. See Brown v. Brock, 169 F. App’x 579, 582 (11th Cir. 2006) (“As 

a general rule, a court in one case will not take judicial notice of its own records in another and distinct case even 

between the same parties, unless the prior proceedings are introduced into evidence.”) (quoting Concordia v. 

Bendekovic, 693 F.2d 1073, 1076 (11th Cir. 1982)); Allen v. Senior Home Care, No. 14-81408, 2015 WL 1097408 at 

*2 (S.D. Fla. Mar. 11, 2015) (declining to take judicial notice of a plaintiff’s prior bankruptcy proceeding records on 

a motion to dismiss).

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Second, Defendants argue that Plaintiff failed to properly reserve its right to bring this 

action in the Reorganization Plan and that, therefore, Plaintiff has no standing.11 In particular, in 

the reply in support of their Motion, Defendants argue that Plaintiff’s failure to reserve its rights 

stripped Plaintiff of its constitutional standing to bring this action. Defendants’ argument, however,

conflates constitutional and prudential standing. 

Prudential standing does not relate to the Court’s constitutional power to adjudicate a case. 

See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014). Rather, it 

encompasses “three broad principles: the general prohibition on a litigant’s raising another 

person’s legal rights, the rule barring adjudication of generalized grievances more appropriately 

addressed in the representative branches, and the requirement that a plaintiff's complaint fall within 

the zone of interests protected by the law invoked.” Id. at 126 (internal quotations and citations 

omitted). 

As set forth in detail above, Plaintiff has adequately alleged standing under Article III of 

the constitution to bring these claims. See infra § I. Plaintiff’s ability to bring these cases postconfirmation of the Reorganization Plan, however, relates to prudential standing. Indeed, 

Defendants challenge Plaintiff’s ability to raise legal rights that might now belong to the 

bankruptcy estate. See e.g. In re Godon, Inc., 275 B.R. 555, 565 (E.D. Ca. 2002) (referring to the 

authority that creditors acquire to recover property for the benefit of the estate under § 

1123(b)(3)(B) as “statutory standing.”).12 But issues of prudential standing do not implication the 

Court’s jurisdiction. Id. When prudential standing is at issue, “the question is whether Plaintiffs 

11 Pursuant to 11 U.S.C. § 1123(b)(3), a reorganization plan may provide for the debtor to reserve their rights with 

respect to designated claims or causes of action.

12 Defendants’ reliance on In re Bay Circle Properties, LLC, 955 F.3d 874 (11th Cir. 2020) is misplaced. In re Bay 

Circle dealt with an appeal of a bankruptcy court’s order by an individual who never owned the property at issue on 

appeal. As a result, the Eleventh Circuit held that the appellee had not suffered the requisite injury in fact to establish 

standing to bring the appeal. Here, as detailed above, Plaintiff has alleged an injury-in-fact.

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have a valid cause of action, and ‘the absence of a valid . . . cause of action does not implicate 

subject-matter jurisdiction.’” Newton v. Duke Energy Florida, LLC, 895 F.3d 1270, 1274 n.6 (11th

Cir. 2018) (quoting Lexmark, 572 U.S. at 134 S. Ct. at 1387 n.4). Therefore, a determination of

whether Plaintiff properly reserved its claims in the Reorganization Plan is best resolved at 

summary judgment. Accordingly, the Motion to dismiss on this ground shall be denied without 

prejudice. 

III. Shotgun Pleading

Though Plaintiff has adequately alleged Article III standing, the Complaint must be 

dismissed as a shotgun pleading. 

“Complaints that violate either Rule 8(a)(2) or Rule 10(b), or both, are often disparagingly 

referred to as shotgun pleadings.” Weiland v. Palm Beach Cty. Sheriff’s Off., 792 F.3d 1313, 1320

(11th Cir. 2015). (internal quotation marks omitted). The Eleventh Circuit generally considers a 

complaint to be a shotgun pleading if it: (1) “contain[s] multiple counts where each count adopts 

the allegations of all preceding counts, causing each successive count to carry all that came before 

and the last count to be a combination of the entire complaint,” id. at 1321; (2) is “replete with 

conclusory, vague, and immaterial facts not obviously connected to any particular cause of action,”

id. at 1321–22; (3) fails to “separate[e] into a different count each cause of action or claim for 

relief,” id. at 1322–23; or (4) “assert[s] multiple claims against multiple defendants without 

specifying which of the defendants are responsible for which acts or omissions, or which of the 

defendants the claim is brought against,” id. at 1323. Shotgun pleadings “fail to give the defendants 

adequate notice of the claims against them and the grounds upon which each claim rests . . . [and] 

waste scarce judicial resources, inexorably broaden the scope of discovery, wreak havoc on 

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appellate court dockets, and undermine the public’s respect for the courts.” Arrington v. Green, 

757 F. App’x 796, 797 (11th Cir. 2018) (internal quotations and citations omitted).

Here, the Complaint improperly incorporates all the factual allegations into each count, 

without properly tying each of those factual allegations to the claims raised. See Innova Inv. Grp.,

LLC v. Village of Key Biscayne, No. 19-CIV-22540, 2020 WL 6781821, at *5 (S.D. Fla. Nov. 18, 

2020). In addition, each count adopts the allegations of all preceding counts. Weiland, 792 F.3d at 

1321. As a result of these pleading deficiencies, the Court is unable to ascertain which facts support 

which claims and whether Plaintiff has stated any claims upon which relief can be granted.

Therefore, the Complaint shall be dismissed without prejudice.

Conclusion

Based on the foregoing, it is ORDERED AND ADJUDGED as follows:

1. Defendants’ Motion to Dismiss Complaint, [ECF No. 54], is GRANTED in PART.

The Complaint is dismissed without prejudice.

2. Defendants’ Motions to Dismiss for Lack of Personal Jurisdiction, [ECF Nos. 48, 52, 

53, & 107], are DENIED as MOOT as there is no longer an operative complaint. 

Defendants may refile their respective motions based on lack of personal jurisdiction, 

supplemented by the facts obtained during jurisdictional discovery, upon the filing of 

an amended complaint.

DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of August, 2021.

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

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