UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

Case No.: 1:20-cv-23287-DPG 

LUIS MANUEL RODRIGUEZ, et al., 

Plaintiffs, 

v. 

IMPERIAL BRANDS PLC, et al., 

Defendants. 

REPLY IN FURTHER SUPPORT OF DEFENDANTS’ MOTION 

TO DISMISS THE AMENDED COMPLAINT 

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i

TABLE OF CONTENTS 

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1

ARGUMENT ...................................................................................................................................2

I. PLAINTIFFS LACK STANDING BECAUSE THIS LAWSUIT DOES NOT 

SEEK TO REMEDY ANY CONCRETE INJURY THAT DEFENDANTS HAVE 

CAUSED..............................................................................................................................2

A. Plaintiffs Have Suffered No Concrete Injury Due to the Alleged Use of Real 

Property That They Do Not Own .............................................................................2

B. The Article III Causation Requirement Is Also Not Satisfied Because This 

Lawsuit Seeks to Remedy an Injury Caused by Cuba’s Acts of Confiscation, 

Not by Defendants’ Subsequent Alleged Trafficking ..............................................5

II. THE AMENDED COMPLAINT DOES NOT STATE A TITLE III CLAIM ...................7

A. Plaintiffs Cannot Satisfy the Two-Year Statute of Repose by Speculating 

That the Alleged Trafficking Might Have Continued Beyond 2010 .......................7

B. Because All of the Alleged Conduct Was Performed by Cuban Companies, 

Plaintiffs Cannot Plead the “Trafficking” Element of Their Title III Claim ...........9

C. Plaintiffs Do Not Plead that Defendants Knowingly and Intentionally 

Trafficked in Confiscated Property to Which a U.S. National Owns a 

Claim ......................................................................................................................11

D. The Amended Complaint Also Does Not Plead the Ownership Element of 

Plaintiffs’ Title III Claim .......................................................................................13

1. This action should be dismissed because Plaintiffs cannot allege that 

the RRHSC Property was confiscated from a U.S. national ......................13

2. This action should also be dismissed because Plaintiffs cannot plead 

that they own the claim that they purport to assert ....................................14

CONCLUSION ..............................................................................................................................15

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TABLE OF AUTHORITIES 

Page(s) 

Cases 

Alejandre v. Telefonica Larga Distancia, de Puerto Rico, Inc., 

183 F.3d 1277 (11th Cir. 1999) .................................................................................................6

Appeal of Lord, 

368 Pa. 121 (1951) .....................................................................................................................4

Architectural Ingenieria Siglo XXI, LLC v. Dominican Republic, 

788 F.3d 1329 (11th Cir. 2015) .................................................................................................6

Baker Botts, L.L.P. v. ASARCO LLC, 

576 U.S. 121 (2015) .................................................................................................................10

Barnett v. Blane, 

11-cv-14345, 2012 WL 12862653 (S.D. Fla. July 3, 2012) ......................................................8

Bryant v. United States, 

768 F.3d 1378 (11th Cir. 2014) .................................................................................................8

Danopulos v. Am. Trading II, L.L.C., 

69 N.E.3d 157 (Ohio Ct. App. 2016) .........................................................................................3

Davis v. Boston Sci. Corp., 

2:17-cv-682-FTM-38CM, 2018 WL 3155683 (M.D. Fla. June 28, 2018) ................................9

Dole Food Co. v. Patrickson, 

538 U.S. 468 (2003) ...................................................................................................................6

Edwards v. Landsman, 

51 So. 3d 1208 (Fla. 4th DCA 2011) .........................................................................................3

Exxon Mobil Corp. v. Corporación CIMEX S.A., 

19-cv-01277 (APM), 2021 WL 1558340 (D.D.C. Apr. 20, 2021) ....................................14, 15

Fed. Republic of Germany v. Philipp, 

141 S. Ct. 703 (2021) ...........................................................................................................4, 14

Flores-Figueroa v. United States, 

556 U.S. 646 (2009) .................................................................................................................13

Gonzalez v. Amazon.com, Inc., 

835 F. App’x 1011 (11th Cir. 2021) ........................................................................................15

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In re Aircrash Disaster Near Roselawn, Indiana on October 31, 1994, 

909 F. Supp. 1083 (N.D. Ill. 1995) ............................................................................................6

In re British Am. Ins. Co. Ltd., 

607 B.R. 753 (S.D. Fla. Bankr. 2019)........................................................................................8

In re Morgan Stanley Mortg. Pass-Through Certificates Litig., 

23 F. Supp. 3d 203 (S.D.N.Y. 2014)..........................................................................................8

In re Newpower, 

233 F.3d 922 (6th Cir. 2000) .....................................................................................................3

In re Shek, 

947 F.3d 770 (11th Cir. 2020) .....................................................................................10, 11, 13

In re Wild, 

994 F.3d 1244 (11th Cir. 2021) ...............................................................................................10

Mann v. Palmer, 

713 F.3d 1306 (11th Cir. 2013) .................................................................................................9

Mannino v. Passalacqua, 

101 N.Y.S.3d 381 (N.Y. App. Div. 2019) .................................................................................4

Mori v. Saito, 

10-cv-6465(KBF), 2013 WL 1736527 (S.D.N.Y. Apr. 19, 2013) .............................................8

Muransky v. Godiva Chocolatier, Inc., 

979 F.3d 917 (11th Cir. 2020) (en banc) ...................................................................................4

Porter v. Alexander, 

141 S.E. 343 (N.C. 1928) ...........................................................................................................3

Richardson v. Seattle-First Nat. Bank, 

38 Wash. 2d 314 (1951) .............................................................................................................3

Salma v. Capon, 

161 Cal. App. 4th 1275 (Ct. App. 2008) ....................................................................................4

Sec’y, U.S. Dep’t. of Labor v. Preston, 

873 F.3d 877 (11th Cir. 2017) ...................................................................................................8

Spokeo, Inc. v. Robins, 

578 U.S. 330 (2016) ...............................................................................................................4, 7

State v. Klinkenberg, 

76 Wash. 466 (1913) ..................................................................................................................4

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TransUnion LLC v. Ramirez, 

141 S. Ct. 2190 (2021) ..................................................................................................... passim

Trichell v. Midland Credit Mgmt., Inc., 

964 F.3d 990 (11th Cir. 2020) ...................................................................................................2

United Cos. Fin. Corp. v. Bergelson, 

573 So. 2d 887 (Fla. 4th DCA 1990) .........................................................................................3

United States v. Belmont, 

301 U.S. 324 (1937) .............................................................................................................4, 14

United States v. NEC Corp., 

11 F.3d 136 (11th Cir. 1993) ...................................................................................................15

Villarreal v. R.J. Reynolds Tobacco Co., 

839 F.3d 958 (11th Cir. 2016) .................................................................................................10

Williams Mgmt. Enters., Inc. v. Buonauro, 

489 So. 2d 160 (Fla. 5th DCA 1986) .........................................................................................3

Statutes 

22 U.S.C. § 6022(2) .........................................................................................................................7

22 U.S.C. § 6023(1) .........................................................................................................................6

22 U.S.C. § 6023(5) .......................................................................................................................12

22 U.S.C. § 6023(11) ...............................................................................................................10, 11

22 U.S.C. § 6023(12)(B) ................................................................................................................11

22 U.S.C. § 6023(13) .....................................................................................................................11

22 U.S.C. § 6023(13)(B)(iv) ....................................................................................................10, 11

22 U.S.C. § 6082(a)(1)(A) .......................................................................................................12, 13 

22 U.S.C. § 6082(a)(4)(B) .............................................................................................................15

22 U.S.C. § 6082(c)(2) .....................................................................................................................6

22 U.S.C. § 6082(d) .........................................................................................................................6 

22 U.S.C. § 6084 ..........................................................................................................................7, 8 

28 U.S.C. § 1603(b) .........................................................................................................................6

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Rules 

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

Fed. R. Civ. P. 12(b)(6)....................................................................................................................1

Other Authorities 

Restatement (Second) of Torts § 222A ............................................................................................3 

Restatement (Second) of Torts § 225...............................................................................................3

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Defendants submit this reply in further support of their motion to dismiss the Amended 

Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6).1

PRELIMINARY STATEMENT 

Defendants demonstrated in their motion to dismiss that the Amended Complaint does not 

plead that Plaintiffs have Article III standing. Defendants’ alleged trafficking in real property in 

Cuba—the RRHSC Property—has caused Plaintiffs no cognizable harm because they do not own 

that property. There is no concrete injury as the Supreme Court has defined that essential 

requirement because there is no close common-law analogue to a claim that—like this one—arises 

from the use of real property that is owned by a third party. Plaintiffs’ attempt to analogize their 

Title III claim to common-law conversion fails, both because that common-law claim requires the 

ownership interest that Plaintiffs lack, and because common-law conversion is limited to personal

property. As the Supreme Court recently put it: “No concrete harm, no standing.” TransUnion LLC 

v. Ramirez, 141 S. Ct. 2190, 2200 (2021). 

Plaintiffs also lack Article III standing because this lawsuit seeks to remedy an injury that 

Defendants’ alleged trafficking did not cause—the loss of the value of the RRHSC Property when 

the Cuban Government confiscated it in 1961 plus compound interest running from that date. That 

was decades before Defendants’ alleged use of or benefiting from the property began. Plaintiffs’ 

only response is to assert—incorrectly—that the Amended Complaint pleads that Defendant 

Corporación Habanos, S.A. (“Habanos, S.A.”) is Cuba. To the contrary, the Amended Complaint 

establishes that Habanos, S.A. is not an agency or instrumentality of Cuba by alleging that Cuba 

only has an indirect non-majority interest in Habanos, S.A. And in any event, the Amended 

1

 Capitalized terms have the meanings assigned to them in Defendants’ memorandum of law 

dated April 28, 2021 [DE 91 (“MTD”)]. Plaintiffs’ opposition [DE 99] is cited as “Opp.” 

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Complaint provides no basis to impute Habanos, S.A.’s alleged status to Imperial or the WPP 

Defendants. 

Defendants also demonstrated in their motion that the Amended Complaint fails to plead 

the elements of a Title III claim. Plaintiffs offer only insufficient responses, consisting, variously, 

of unsupportable distorted interpretations of the statutory text, mischaracterizations of the 

controlling case law, and rank speculation dressed up as “information and belief.” 

ARGUMENT 

I. PLAINTIFFS LACK STANDING BECAUSE THIS LAWSUIT DOES NOT SEEK 

TO REMEDY ANY CONCRETE INJURY THAT DEFENDANTS HAVE CAUSED 

As Defendants have shown, Plaintiffs lack standing because Defendants’ alleged 

“trafficking” in the RRHSC Property has caused them no cognizable harm. MTD at 7–11. 

Plaintiffs have no concrete injury because they do not own the real property that Defendants 

allegedly used. Id. at 8–10. And Defendants’ alleged trafficking did not cause the injury this 

lawsuit seeks to remedy, i.e., the loss of the value of the RRHSC Property when the Cuban 

Government confiscated it, decades before Defendants’ alleged trafficking began. Id. at 9–11. 

Plaintiffs offer no substantial response to either showing. 

A. Plaintiffs Have Suffered No Concrete Injury Due to the Alleged Use of Real 

Property That They Do Not Own 

Defendants’ alleged “trafficking” of the RRHSC Property has caused no concrete harm 

because Plaintiffs lack an ownership interest in that property. MTD at 8–9. Plaintiffs respond that 

Title III is “a legislatively created claim designed to compensate victims of Cuba’s uncompensated 

confiscation,” Opp. at 7, but a court “‘cannot treat an injury as ‘concrete’ for Article III purposes 

based only on Congress’s say-so.’” TransUnion LLC, 141 S. Ct. at 2205 (quoting Trichell v. 

Midland Credit Mgmt., Inc., 964 F.3d 990, 999 n.2 (11th Cir. 2020)). Rather, Plaintiffs must 

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identify “a close historical or common-law analogue” to their Title III claim. See id. at 2204. This 

they cannot do. 

Plaintiffs rightly do not dispute that the most likely common-law candidates—trespass and 

unjust enrichment—are not closely analogous to a Title III claim because both require an element 

that is absent here: an ownership interest in the RRHSC Property. See MTD at 8–9 & n.5. Plaintiffs 

are mistaken, however, that the common-law tort of conversion supplies the required analogy. 

Opp. at 8–10. 

Similar to trespass and unjust enrichment, a plaintiff asserting a conversion claim must 

demonstrate the right to immediate possession and control of the converted property. Restatement 

(Second) of Torts §§ 222A, 225; see also Edwards v. Landsman, 51 So. 3d 1208, 1213 (Fla. 4th 

DCA 2011) (“[T]o state a claim for conversion, one must allege facts sufficient to show ownership 

of the subject property.”). Here, Plaintiffs do not contend that they own the RRHSC Property. See 

MTD at 4, 8. To the contrary, they rightly acknowledge that Cuba’s confiscation deprived them of 

“possession and title.” Opp. at 9. 

Moreover, this Title III claim arises from Defendants’ alleged use of real property—the 

RRHSC Property. Yet, as the cases cited by Plaintiffs reflect, common-law conversion consists of 

wrongful interference with “another’s possessory rights in personal property.” Williams Mgmt. 

Enters., Inc. v. Buonauro, 489 So. 2d 160, 161 (Fla. 5th DCA 1986) (emphasis added).2 At 

common law, “real property cannot be the subject of conversion.” United Cos. Fin. Corp. v. 

2

 See also Porter v. Alexander, 141 S.E. 343, 344 (N.C. 1928) (“The law of conversion was 

developed through the common-law action of trover, which was applicable to cases in which the 

plaintiff had lost goods that were afterwards found and appropriated by the defendant.”) (emphasis 

added). Plaintiffs cite conversion cases involving a vehicle, see Richardson v. Seattle-First Nat. 

Bank, 38 Wash. 2d 314, 315 (1951), jewelry, see Danopulos v. Am. Trading II, L.L.C., 69 N.E.3d 

157, 158 (Ohio Ct. App. 2016), and cash, see In re Newpower, 233 F.3d 922, 926 (6th Cir. 2000).

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Bergelson, 573 So. 2d 887, 888 (Fla. 4th DCA 1990) (citation omitted).3 Similarly, “[r]eal property 

under the English law was never the subject of” larceny because it is “incapable of larcenous 

asportation.” State v. Klinkenberg, 76 Wash. 466, 469–70 (1913). 

Plaintiffs are correct that their Title III claim need not be “an exact duplicate” of a commonlaw claim. TransUnion LLC, 141 S. Ct. at 2204, 2209; see Opp. at 7, 9. But when—as here—the 

statute omits an element that is ‘“essential to liability’” at common law, the purported statutory 

injury lacks the required concreteness. TransUnion LLC, 141 S. Ct. at 2209; see also MTD at 9 & 

n.6. Title III omits not one but two essential elements of a common-law conversion claim, supra

at 3, rendering the analogy “strained,” and depriving Plaintiffs of standing. Muransky v. Godiva 

Chocolatier, Inc., 979 F.3d 917, 932 (11th Cir. 2020) (en banc). 

Plaintiffs are also wrong to analogize Title III to the federal and state constitutional claims 

that may be available with respect to certain domestic governmental takings. Opp. at 8–9 (citing 

Appeal of Lord, 368 Pa. 121 (1951)). Claims arising from a foreign government’s taking of the 

property of its own nationals have long been barred by the domestic takings rule. See Fed. Republic 

of Germany v. Philipp, 141 S. Ct. 703, 709–11 (2021); United States v. Belmont, 301 U.S. 324, 

332 (1937). Plaintiffs tacitly concede that the Cuban Government confiscated the RRHSC Property 

from a Cuban national. Opp. at 19. Therefore, their Title III claim assuredly does not bear the 

required “‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit 

in American courts.” TransUnion LLC, 141 S. Ct. at 2204 (quoting Spokeo, Inc. v. Robins, 578 

U.S. 330, 341 (2016)). 

3

 See also Mannino v. Passalacqua, 101 N.Y.S.3d 381, 384 (N.Y. App. Div. 2019) (“An 

action sounding in conversion does not lie where the property involved is real property.”); Salma 

v. Capon, 161 Cal. App. 4th 1275, 1295 (Ct. App. 2008) (“The tort of conversion applies to 

personal property, not real property.”).

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Finally, Plaintiffs are not assisted by citing inapposite cases that: (a) involved a plaintiff 

that—unlike Plaintiffs before this Court—was suing in respect of a claim certified by the Foreign 

Claims Settlement Commission, MTD at 10 n.8; (b) incorrectly deferred to Congress on the 

question of whether an injury is concrete, id.; and (c) did not address Defendants’ argument that a 

Title III plaintiff suing in respect of real property that it does not own suffers no “concrete” injury 

as the Supreme Court’s recent jurisprudence defines that requirement because there is no close 

common-law analogue to such a novel claim, id. at 9 n.7. 

B. The Article III Causation Requirement Is Also Not Satisfied Because This 

Lawsuit Seeks to Remedy an Injury Caused by Cuba’s Acts of Confiscation, 

Not by Defendants’ Subsequent Alleged Trafficking 

Defendants have shown that Plaintiffs lack standing for the additional reason that this 

lawsuit does not seek to remedy any injury caused by Defendants’ alleged trafficking in the 

RRHSC Property. MTD at 9–11. To the contrary, Plaintiffs demand damages based on the value 

of the property when the Cuban government confiscated it in 1961 plus compound interest from 

that date—decades before Defendants’ alleged trafficking began. Id. 

Far from arguing that this lawsuit seeks to remedy an injury caused by Defendants—a core 

requirement for Article III standing, see id. at 7—Plaintiffs acknowledge that Congress enacted 

Title III “in order to compensate victims of the Cuban government’s uncompensated confiscation 

of property.” [DE 100 at 2 (emphasis added)].4 The causation requirement of Article III standing 

is not satisfied when—as here—the injury sought to be remedied was caused by a third party. 

MTD at 11. Article III confers no “freewheeling power to hold defendants accountable for legal 

4

 See also Opp. at 7 (conceding that Title III is “a legislatively created claim designed to 

compensate victims of Cuba’s uncompensated confiscation”) (emphasis added). 

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infractions,” only “the power to redress harms that defendants cause plaintiffs.” TransUnion LLC, 

141 S. Ct. at 2205 (emphases added). 

Plaintiffs cannot circumvent the limitations of Article III by asserting incorrectly that 

“Defendant Habanos is deemed to be Cuba for purposes of this HBA claim.” Opp. at 7; see id. at 

4 & n.2. This argument fails on every level. The Amended Complaint conclusively establishes that 

Habanos, S.A. is not an agency or instrumentality of Cuba, by alleging that the Cuban interest in 

Habanos, S.A. is only fifty percent, and that it is not directly owned by Cuba itself but rather by 

Tabacuba, a Cuban company. Am. Comp. ¶ 7. “[O]nly direct ownership of a majority of shares by 

the foreign state satisfies the statutory requirement.” Dole Food Co. v. Patrickson, 538 U.S. 468, 

474 (2003) (emphasis added); see also In re Aircrash Disaster Near Roselawn, Indiana on October 

31, 1994, 909 F. Supp. 1083, 1091 & n.7 (N.D. Ill. 1995) (entity is an agency or instrumentality 

only if foreign state owns “more than 50% of its shares”) (emphasis added).5 Moreover, under 

Title III, “agency or instrumentality” status has only limited procedural implications pertaining to 

service of process and enforcement, 22 U.S.C. § 6082(c)(2), (d), not the open-ended consequences 

that Plaintiffs imagine. And in any event, the Amended Complaint pleads no basis to pierce the 

corporate veil between Habanos, S.A. and Imperial [DE 88 at 7–8], much less to impute to Imperial 

acts of confiscation that Cuba committed in 1961, decades before Imperial had an indirect 

5

 Title III defines “agency or instrumentality” by reference to the definition in the Foreign 

Sovereign Immunities Act (“FSIA”). See 22 U.S.C. § 6023(1); 28 U.S.C. § 1603(b). The FSIA’s 

definition of “agency or instrumentality,” which was the subject of the Supreme Court’s ruling in 

Dole, defines an “agency or instrumentality” in relevant part as any entity “which is a separate 

legal person, corporate or otherwise,” “a majority of whose shares or other ownership interest is 

owned by a foreign state or political subdivision thereof[.]” 28 U.S.C. § 1603(b) (emphasis added). 

Moreover, even if the Amended Complaint alleged that Habanos, S.A. is an agency or 

instrumentality, the Eleventh Circuit has made clear that Cuban agencies or instrumentalities must 

be regarded as separate from the Cuban Government. See Alejandre v. Telefonica Larga Distancia, 

de Puerto Rico, Inc., 183 F.3d 1277, 1286–89 (11th Cir. 1999); see also Architectural Ingenieria 

Siglo XXI, LLC v. Dominican Republic, 788 F.3d 1329, 1342–43 (11th Cir. 2015); MTD at 19.

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shareholding in Habanos, S.A. Nor is there any basis to impute such acts to the WPP Defendants, 

which are not alleged to have any ownership or control over Habanos, S.A. 

* * * 

Congress intended Title III to “strengthen international sanctions against the Castro 

government,” 22 U.S.C. § 6022(2), by discouraging foreign investment in Cuba, MTD at 3. But 

when, as here, Defendants’ alleged trafficking has caused Plaintiffs no harm because they do not 

own the RRHSC Property, Plaintiffs cannot bring suit “to ensure a defendant’s ‘compliance with 

regulatory law’ (and, of course, to obtain some money via the statutory damages).” TransUnion 

LLC, 141 S. Ct. at 2206 (quoting Spokeo, Inc., 578 U.S. at 345 (Thomas, J., concurring)). 

Permitting this suit to proceed against Defendants in the absence of concrete harm caused to 

Plaintiffs by Defendants’ alleged trafficking would “flout constitutional text, history, and 

precedent.” Id. This lawsuit should therefore be dismissed. 

II. THE AMENDED COMPLAINT DOES NOT STATE A TITLE III CLAIM 

Defendants have also shown that Plaintiffs fail to state a claim because this case is barred 

by the Title III statute of repose, MTD at 12–15, and because Plaintiffs cannot plead several 

essential elements of their Title III claim, id. at 15–24. Plaintiffs have no substantial response. 

A. Plaintiffs Cannot Satisfy the Two-Year Statute of Repose by Speculating 

That the Alleged Trafficking Might Have Continued Beyond 2010 

The Title III statute of repose provides that a claim “may not be brought more than 2 years 

after the trafficking giving rise to the action has ceased to occur.” 22 U.S.C. § 6084. This is fatal, 

as the Amended Complaint contains no factual allegation that Defendants were trafficking in the 

RRHSC Property in the two years preceding this suit. MTD at 12–15. 

Plaintiffs do not contend that they have alleged—or that they have any factual basis to 

allege—trafficking by Defendants during the repose period. Instead, they insist that there is no 

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need to plead compliance with a statute of limitations, which provides an affirmative defense to a 

claim. Opp. at 10–11. Alternatively, Plaintiffs contend that because the RRHSC Property is “in 

Cuba,” the Court should credit their unsupported “information and belief” that whatever use 

Habanos, S.A. was allegedly making of the RRHSC Property in 2010, Am. Compl. ¶ 53, continued 

through August 2018. MTD at 11–12. They are wrong. 

First, unlike the affirmative defense provided by a statute of limitations, a statute of repose 

like § 6084 “acts as a condition precedent to the action itself.” Bryant v. United States, 768 F.3d 

1378, 1383 (11th Cir. 2014) (quotations and citation omitted) (applying state law). Section 6084 

is a statute of repose because it runs from the time when Defendants’ conduct (the alleged 

trafficking) ended, not from when the claim accrued. See Sec’y, U.S. Dep’t. of Labor v. Preston, 

873 F.3d 877, 883 (11th Cir. 2017) (“Whereas a statute of limitations establishes a time limit 

‘based on the date when the claim accrued,’ a statute of repose bars ‘any suit that is brought after 

a specified time since the defendant acted,’ without regard to any later accrual.”) (emphasis in 

original). Where “a statute of repose applies, there is no claim at all and it is appropriate to dismiss 

for failure to state a claim.” In re British Am. Ins. Co. Ltd., 607 B.R. 753, 756 (S.D. Fla. Bankr. 

2019) (applying state law); see also Mori v. Saito, 10-cv-6465(KBF), 2013 WL 1736527, at *3–5 

(S.D.N.Y. Apr. 19, 2013) (dismissing federal securities claims for failure to “affirmatively plead” 

compliance with the statute of repose).6

6

 See also In re Morgan Stanley Mortg. Pass-Through Certificates Litig., 23 F. Supp. 3d 

203, 208 (S.D.N.Y. 2014) (federal statute of repose “is a substantive element of the claim that frees 

a defendant from liability after a fixed period of time”); Barnett v. Blane, 11-cv-14345, 2012 WL 

12862653, at *6–7 (S.D. Fla. July 3, 2012) (dismissing claims barred by the statute of repose 

because “[s]tatutes of repose by their nature reimpose on some plaintiffs the hardship of having a 

claim extinguished before it is discovered, or perhaps before it even exists”) (quotations and 

citation omitted).

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Second, the fact that the Amended Complaint does not affirmatively “plead that Defendants 

use of the Property ceased in 2010 nor at any other time before October 2020,” Opp. at 10–12, 

does not permit the inference that the use Habanos, S.A. was allegedly making of the RRHSC 

Property in February 2010, Am. Compl. ¶ 53, continued into the repose period. Contrary to 

Plaintiffs’ contention, they have not properly alleged upon “information and belief” that 

Defendants were trafficking in the RRHSC Property during the repose period. Opp. at 11–12. 

Information-and-belief pleading is only allowed “where the information is ‘in exclusive control of 

the defendant and cannot be possessed by other entities.’” Davis v. Boston Sci. Corp., 2:17-cv682-FTM-38CM, 2018 WL 3155683, at *4–5 (M.D. Fla. June 28, 2018) (citation omitted). But 

the materials exhibited to the Amended Complaint show that the RRHSC Property is a city-blocksized building on a public street, and that it bears signage identifying who is using it. Am. Compl. 

Ex. 2. In addition, as to Plaintiffs’ observation that the RRHSC Property “is in Cuba,” Opp. at 12, 

“[t]he Eleventh Circuit has repeatedly noted that difficulty in obtaining information is not the same 

as the inability to do so.” Davis, 2018 WL 3155683, at *4 (citing cases). 

Moreover, “information and belief” allegations should be disregarded as speculation 

when—as here—they are not accompanied by facts that show the asserted belief to be plausible. 

Mann v. Palmer, 713 F.3d 1306, 1315 (11th Cir. 2013). Here, Plaintiffs are speculating, because 

they cannot make a good-faith factual allegation that the use that Habanos, S.A. was allegedly 

making of the RRHSC Property in February 2010 continued through August 2018. 

B. Because All of the Alleged Conduct Was Performed by Cuban Companies, 

Plaintiffs Cannot Plead the “Trafficking” Element of Their Title III Claim 

As Defendants have shown, the Amended Complaint does not plead the essential element 

of “trafficking,” because the alleged conduct was assertedly performed by Defendant Habanos, 

S.A., and/or non-party Tabacuba—Cuban corporations whose conduct is categorically excluded 

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from the statutory definition of trafficking in 22 U.S.C. § 6023(13)(B)(iv). MTD at 15–16. 

Plaintiffs do not deny that all of the asserted liability in this case flows from the alleged conduct 

of these two Cuban corporations. Instead, they fault Defendants for relying on the plain language 

of § 6023(13)(B)(iv), and ask the Court to subvert the statutory text by reference to Congress’s 

supposed purpose. Opp. at 14–15. 

The Court should not eschew the plain meaning of § 6023(13)(B)(iv) on the basis that 

Plaintiffs believe that a different interpretation would better promote Congress’s goal of deterring 

foreign investment in Cuba. Opp. at 13. A court’s “job is to follow the text even if doing so will 

supposedly undercut a basic objective of the statute.” Baker Botts, L.L.P. v. ASARCO LLC, 576 

U.S. 121, 135 (2015) (internal quotations omitted). As the Eleventh Circuit has said, “[e]levating 

general notions of purpose over the plain meaning of the text is inconsistent with our judicial duty 

to interpret the law as written.” Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 969–70 

(11th Cir. 2016).7

Here, the statutory text is clear. “Trafficking” excludes “transactions and uses of property 

by a person who is both a citizen of Cuba and a resident of Cuba, and who is not an official of the 

Cuban Government or the ruling political party in Cuba.” 22 U.S.C. § 6023(13)(B)(iv). A 

“person,” is “any person or entity, including any agency or instrumentality of a foreign state.” 

Id. § 6023(11) (emphasis added). It is common ground that Habanos, S.A., and Tabacuba are 

Cuban “entities.” Therefore, their alleged conduct is not trafficking. 

7

 Contrary to Plaintiffs’ misapprehension, Opp. at 14, “context” is relevant in the sense that 

a statute should be interpreted as a whole, In re Shek, 947 F.3d 770, 777 (11th Cir. 2020) (cited in 

Opp. at 14), but that does not permit supposed Congressional purpose to trump the statutory text. 

“The inquiry both begins and ends with a careful examination of the statute’s language.” In re 

Wild, 994 F.3d 1244, 1255 (11th Cir. 2021).

Case 1:20-cv-23287-DPG Document 109 Entered on FLSD Docket 07/16/2021 Page 16 of 22
11 

Plaintiffs’ alternative interpretation of § 6023(13)(B)(iv)—as exempting individual 

residents of confiscated residential property from Title III claims provided that property is not the 

subject of a certified claim—is not supportable. Opp. at 14–15. A different section of the statute—

§ 6023(12)(B)—performs that role.8 Under Plaintiffs’ proposed interpretation, § 6023(13)(B)(iv) 

would duplicate § 6023(12)(B), in violation of the surplusage canon. In re Shek, 947 F.3d at 777. 

Further, Plaintiffs’ proposal to limit “person” as used in § 6023(13)(B)(iv) to “individual Cuban 

residents,” Opp. at 14, is contrary to the statute, which provides that “person” means “any person 

or entity, including any agency or instrumentality of a foreign state.” 22 U.S.C. § 6023(11) 

(emphasis added). The inclusion of agencies and instrumentalities in the definition of “person,” 

id., also dooms Plaintiffs’ contention that § 6023(13)(B)(iv) is inapplicable because Habanos, S.A. 

is an agency or instrumentality of Cuba. Opp. at 15. That contention also fails because the 

Amended Complaint pleads that Habanos, S.A. is not an agency or instrumentality of Cuba in any 

event. Supra at 6. 

C. Plaintiffs Do Not Plead that Defendants Knowingly and Intentionally 

Trafficked in Confiscated Property to Which a U.S. National Owns a Claim 

Defendants have shown that the Amended Complaint does not allege that they “knowingly 

and intentionally” trafficked in confiscated property without the authorization of a U.S. national 

who holds a claim to the property. MTD at 16–20; see 22 U.S.C. § 6023(13). 

There is no merit to Plaintiffs’ contention that no further allegation of knowledge and 

intention “could possibly be necessary” because they have established that Habanos, S.A. “is 

statutorily deemed to be the Cuban Government itself.” Opp. at 16. As shown, the Amended 

8

 Section 6023(12)(B) provides that “‘property’ does not include real property used for 

residential purposes,” unless the claim to such property has been certified under Title V of the 

International Claims Settlement Act of 1949. 22 U.S.C. § 6023(12)(B). 

Case 1:20-cv-23287-DPG Document 109 Entered on FLSD Docket 07/16/2021 Page 17 of 22
12 

Complaint affirmatively pleads facts showing that Habanos, S.A. is not an agency or 

instrumentality of the Cuban Government, supra at 6, and therefore does not plead that Habanos, 

S.A. is the “Cuban Government,” 22 U.S.C. § 6023(5). 

Moreover, the effect of including agencies and instrumentalities within the defined term 

“Cuban Government,” 22 U.S.C. § 6023(5), is not to impute Cuba’s knowledge to its agencies and 

instrumentalities, but rather to ensure that property confiscated by those agencies and 

instrumentalities is subject to claims under Title III, 22 U.S.C. § 6082(a)(1)(A), subject to the 

limitations of the FSIA. And in any event, the Amended Complaint pleads no basis to impute 

Habanos, S.A.’s purported knowledge to Imperial or to the WPP Defendants, supra at 6–7. 

Plaintiffs are equally mistaken in their contention that the 1961 official announcement of 

the confiscation of RRHSC, which in turn allegedly owned the RRHSC Property, establishes that 

Defendants “knowingly and intentionally” trafficked in confiscated property without the 

authorization of a U.S. national who holds a claim to the property. Opp. at 16–17. As several courts 

have recognized, the “knowingly and intentionally” element would have no meaning if it were 

satisfied by allegations that it is common knowledge that most property in Cuba was confiscated. 

MTD at 17. Yet that is all the official announcement reflects. Moreover, the 1961 announcement 

does not reflect the confiscation of the RRHSC Property that Defendants allegedly trafficked. 

Plaintiffs offer nothing but insufficient speculation that Defendants might have had access to other 

unspecified documents that could have permitted them to draw a connection between RRHSC and 

the real property they allegedly used. MTD at 18. 

Lastly, Plaintiffs concede that the Amended Complaint fails to allege that Defendants knew 

that a U.S. national held a claim to the RRHSC Property. Opp. at 18. They are mistaken, however, 

that § 6023(13) imposes no such requirement. Section 6023(13)(A) defines trafficking by reference 

Case 1:20-cv-23287-DPG Document 109 Entered on FLSD Docket 07/16/2021 Page 18 of 22
13 

to what a defendant must do “knowingly and intentionally” vis-à-vis confiscated property, 

including failing to obtain authorization from the U.S.-national claimant to the property. As the 

Supreme Court has recognized, as “a matter of ordinary English grammar,” it is “natural to read 

the statute’s word ‘knowingly’ as applying to all the subsequently listed elements of the crime.” 

Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009). Just so here. 

Moreover, Plaintiffs’ interpretation would impermissibly render meaningless the language 

in § 6023(13)(A) “without the authorization of any U.S. national who hold a claim to the property.” 

See In re Shek, 947 F.3d at 777. The main operative provision of Title III already makes clear that 

only U.S. nationals can assert claims. 22 U.S.C. § 6082(a)(1)(A). The reference to U.S. nationals 

in § 6023(13)(A) adds nothing, unless it is to require that the defendant know that a U.S. national 

holds a claim and traffic in the property regardless.9

D. The Amended Complaint Also Does Not Plead the Ownership Element of 

Plaintiffs’ Title III Claim 

As Defendants have shown, the Amended Complaint does not allege either that (i) the 

RRHSC Property was confiscated from a U.S. national or (ii) Plaintiffs now own this Title III 

claim. MTD at 20–24. As Plaintiffs have no genuine response, the Amended Complaint should be 

dismissed, as several other Title III actions have been under similar circumstances. MTD at 20 

(collecting cases). 

1. This action should be dismissed because Plaintiffs cannot allege that the 

RRHSC Property was confiscated from a U.S. national 

Defendants have shown that Congress legislated consistent with the domestic takings rule 

by limiting Title III claims to trafficking in property that the Cuban Government confiscated from 

9

 If the intention had been to clarify that a U.S. national who has consented to the use of 

confiscated property cannot assert a Title III claim, then that would more naturally have been 

included in § 6023(13)(B), which identifies conduct that does not constitute trafficking.

Case 1:20-cv-23287-DPG Document 109 Entered on FLSD Docket 07/16/2021 Page 19 of 22
14 

U.S. nationals, not from Cuban nationals. MTD at 20–22. Dismissal is required, as Plaintiffs 

concede that neither the RRHSC Property nor RRHSC was owned by a U.S. national at the time 

the Cuban Government confiscated them. Opp. at 19. 

Plaintiffs mistakenly argue that the domestic takings rule is irrelevant because this claim is 

not asserted against Cuba itself so that there is “no relevant ‘immunity’ issue.” Opp. at 19. The 

domestic takings rule is not a rule of sovereign immunity. It bars private claims arising from a 

foreign government’s taking of the property of its own citizens, see, e.g., Belmont, 301 U.S. at 328, 

and claims against the expropriating sovereign, Philipp, 141 S. Ct. at 709–11.10 Just as the FSIA 

did not “purport[] to alter” the domestic takings rule, id. at 711, Title III evinces no Congressional 

intention to abrogate the domestic takings rule to permit claims arising from the Cuban 

Government’s confiscation of property from its own citizens, MTD at 21–22. 

2. This action should also be dismissed because Plaintiffs cannot plead 

that they own the claim that they purport to assert 

Defendants have shown that this action should be dismissed because, based on the 

allegations in the Amended Complaint, Plaintiffs cannot show that they—as opposed to RRHSC—

own any claim arising from trafficking in the RRHSC Property. MTD at 22–23. Plaintiffs’ only 

response is unavailing. They misplace their reliance on Exxon Mobil Corp., which determined a 

question that does not arise here—that Cuba’s confiscation of some but not all of the assets of a 

non-Cuban corporation did not constitute an expropriation of that corporation from its U.S. parent 

for purposes of public international law and of the FSIA expropriation exception. 2021 WL 

1558340 at *17–19. Exxon Mobil Corp. does not explain how Plaintiffs could have a Title III claim 

10

 Exxon Mobil Corp. v. Corporación CIMEX S.A., 19-cv-01277 (APM), 2021 WL 1558340 

(D.D.C. Apr. 20, 2021), mistakenly relied upon by Plaintiffs, did not concern the domestic takings 

rule at all. 

Case 1:20-cv-23287-DPG Document 109 Entered on FLSD Docket 07/16/2021 Page 20 of 22
15 

with respect to alleged trafficking in real property that belonged, not to Plaintiffs nor even to their 

Cuban ancestor, but rather to a separate Cuban legal entity, RRHSC. 

Defendants have also shown that this Court should dismiss the claims of those Plaintiffs 

who concededly acquired their claims after the March 12, 1996 statutory cutoff, as several other 

courts have done under similar circumstances. MTD at 24. Plaintiffs assert that those other courts 

“did not consider binding Eleventh Circuit law,” Opp. at. 20—a peculiar argument, given that one 

of those courts was the Eleventh Circuit itself. Gonzalez v. Amazon.com, Inc., 835 F. App’x 

1011, 1011–12 (11th Cir. 2021). In any event, the federal common-law “survival” rule discussed 

in United States v. NEC Corp., 11 F.3d 136, 137 (11th Cir. 1993), applies only “[i]n the absence 

of an expression of contrary intent.” Id. Title III provides just such an expression, by requiring the 

U.S. national plaintiff to “acquire[]” ownership of the claim before March 12, 1996, without 

excluding claims acquired through inheritance. 22 U.S.C. § 6082(a)(4)(B). 

CONCLUSION

For all of these reasons, the Court should dismiss the Amended Complaint without further 

leave to amend, and grant such other and further relief as the Court may consider appropriate.

Case 1:20-cv-23287-DPG Document 109 Entered on FLSD Docket 07/16/2021 Page 21 of 22
Dated: July 16, 2021 

Miami, Florida 

/s/ Mark F. Raymond 

NELSON MULLINS BROAD AND CASSEL 

Mark F. Raymond 

mark.raymond@nelsonmullins.com 

Jonathan Etra 

jonathan.etra@nelsonmullins.com 

2 South Biscayne Blvd. 21st Floor 

Miami, FL 33131 

Telephone: 305-373-9400 

ALLEN & OVERY LLP 

Andrew Rhys Davies (admitted pro hac vice) 

andrewrhys.davies@allenovery.com 

Justin L. Ormand (admitted pro hac vice) 

justin.ormand@allenovery.com 

1221 Avenue of the Americas 

New York, NY 10020 

Telephone: 212-610-6300 

Attorneys for Defendant Imperial Brands plc 

/s/ Charles Murray Harris, Jr. 

TRENAM KEMKER SCHARF BARKIN 

FRYE O’NEILL & MULLIS 

Charles Murray Harris, Jr. 

charris@trenam.com 

Stephanie Crane Lieb 

slieb@trenam.com 

101 E Kennedy Boulevard 

Tampa, FL 33601-1102 

Telephone: (727) 820-3950 

RABINOWITZ, BOUDIN, STANDARD, 

KRINSKY & LIEBERMAN, P.C. 

Michael R. Krinsky (admitted pro hac vice) 

mkrinsky@rbskl.com 

Lindsey Frank (admitted pro hac vice) 

lfrank@rbskl.com 

14 Wall Street, Suite 3002 

New York, NY 10005 

Telephone: (212) 254-1111 

Attorneys for Defendant Corporación Habanos, 

S.A.

/s/ Naim S. Surgeon 

AKERMAN LLP 

Naim S. Surgeon (Florida Bar No. 101682) 

naim.surgeon@akerman.com 

Pedro Freyre (Florida Bar No. 192140) 

pedro.freyre@akerman.com 

3 Brickell City Centre 

98 Southeast 7th St., Suite 1100 

Miami, Florida 33131 

Telephone: 305-982-5507 

WILMER CUTLER PICKERING HALE AND 

DORR LLP 

Christopher Davies (admitted pro hac vice) 

christopher.davies@wilmerhale.com 

Jessica Lutkenhaus (admitted pro hac vice) 

jessica.lutkenhaus@wilmerhale.com 

Ashley McLaughlin Leen (admitted pro hac vice) 

ashley.leen@wilmerhale.com 

1875 Pennsylvania Ave NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Attorneys for Defendants WPP PLC, Young & 

Rubicam LLC, and BCW LLC, a/k/a Burson Cohn 

& Wolfe LLC

Case 1:20-cv-23287-DPG Document 109 Entered on FLSD Docket 07/16/2021 Page 22 of 22