1 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

Case No.: 1:20-cv-23287(DPG)(AMO) 

LUIS MANUEL RODRIGUEZ, et al., 

Plaintiffs, 

v. 

IMPERIAL BRANDS PLC, et al., 

Defendants. 

__________________________________________/ 

Memorandum of Law in Opposition to Defendant Corporación Habanos, S.A.’s 

Motion to Dismiss Amended Complaint 

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PRELIMINARY STATEMENT 

Plaintiffs are the owners of a 90% interest in Ramón Rodriguez e Hijos Sociedad en 

Comandita (“RRHSC”). RRHSC was the owner of the Partagas cigarette factory building and a 

modern mixed-use building adjacent and connected to said factory at the corner of Calle 23 y 16 

(23rd Street and 16th) in Havana, Cuba (collectively the “Property”). The Castro government 

confiscated ownership of RRHSC, which was then owned by Plaintiffs’ ancestor Ramon 

Rodriguez Gutierrez (“RRG”)1, and the Property without compensation to RRG. See Amended 

Complaint (Am. Comp.) ¶7, (ECF 82).2 Plaintiffs are the owners of a “Claim” created by the 

Helms-Burton Act (“HBA” or “Libertad Act”) in order to compensate victims of the Cuban 

government’s uncompensated confiscation of property. 

In 2007 or 2008, Imperial entered into a joint venture with Cuba and its tobacco 

monopoly company, “Tabacuba.” Defendant Habanos is a joint venture company controlled by 

Cuba with financial interests owned 50% by Imperial and 50% by Cuba. See Am. Comp. ¶7. At 

all relevant times3, Imperial’s joint venture arrangements with Cuba and Tabacuba (the “Cuban 

Joint Ventures”) collectively “manufacture[d], market[ed], distribute[d] and s[old] cigars 

manufactured in Cuba.” See Am. Compl. ¶6. Habanos has “trafficked” in the Property without 

compensation to Plaintiffs in violation of the HBA. 

1 Two of RRG’s sons, Plaintiff Luis Manuel Rodriguez and Raul Bernardo Lupo 

Rodriguez (“RBLR”), who is now deceased, were involved in managing the RRHSC business 

prior to confiscation and owned small minority interests in RRHSC. 

2 The facts set out in the Amended Complaint are not challenged by Imperial and therefore 

should be accepted as true for purposes of Imperial’s Motion. 

3

Imperial reportedly sold its Cuban Joint Venture interests in October 2020. 

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Habanos moves to dismiss contending that the Court does not have personal jurisdiction 

over it. As demonstrated below, Habanos deliberately chose to “avail itself” of the forum by 

using U.S. companies to further its trafficking of Plaintiffs’ Property through U.S. internet 

services. That conduct is in violation of U.S. law. It is sufficient to subject Habanos to 

jurisdiction. The Court should deny the Motion. 

LEGAL ARUGMENT 

I. HABANOS ATTEMPTS TO INCORPORATE CO-DEFENDANT’S MOTION TO 

DISMISS BY REFERNCE MUST FAIL 

Habanos moves to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1), 

lack of subject-matter jurisdiction, and in support thereof, it “relies upon Defendants’ joint 

Memorandum of Law and Defendant Imperial Brands PLC’s Memorandum of Law, which is 

briefly supplemented here.” Motion at 1. Further, Habanos states “Imperial argues that 

requirements (1) and (2) are not met with respect to it even assuming that Habanos, S.A.’s alleged 

conduct is attributable to Imperial. In addition to advancing its own arguments, infra, Habanos, 

S.A. concurs in Imperial’s argument, at I(A)(2) of its Memorandum.4” Motion at 5, No. 2. 

Habanos continues its attempt to “piggy-back” off of Imperial’s motion to dismiss and states 

“Imperial argues, in support of its Rule 12(b)(6) motion, that Title III’s application to its 

 . . Cuban cigar business would exceed the Due Process Clause’s limits . . . . Habanos, 

S.A. relies upon Imperials’ argument . . . “ Motion at 20. 

Attempts to incorporate co-defendant’s motions by reference are inappropriate and should 

be discarded. Jolly v. Hoegh Autoliners Shipping AS, No. 3:20-CV-1150-J-34PDB, 2020 WL 

4

 Requirement 1 being that the Plaintiffs’ claim “arises out of or relates to” Habanos’s contact 

with the forum, and requirement 2 being that Defendant Habanos, S.A. “purposefully availed 

itself of the privilege of conducting activities within the forum,” Motion at 5 (internaal quotation 

marks and citations omitted). 

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6505037, at *1 (M.D. Fla. Nov. 5, 2020) (““[A]ttempts to join or adopt the motions of other 

Defendants are improper and due to be stricken in that adopting and incorporating by reference the 

arguments of other Defendants violates Local Rule 3.01(a)5 . . . and places an undue burden on 

judicial resources.”) Habanos’ attempt to adopt Imperial’s arguments should also be rejected. 

II. THE COURT HAS PERSONAL JURISDICTION OVER HABANOS 

A. PLAINTIFFS’ CLAIMS AGAINST DEFENDANT ARISE FROM 

HABANOS’ TRAFFICKING AS DEFINED UNDER THE HELMS-BURTON ACT 

Habanos argues that personal jurisdiction is lacking as the social media portal used to 

market Habanos products were established after production at the Partagas Factory ended and thus 

Plaintiffs’ claims cannot “arise out of or relate to” Defendant’s activites in the forum. Motion at 

5, 6. As demonstrated herein, Habanos is mistaken as: (1) Habanos contention is yet another 

improper attempt to dismiss the case based on its affirmative defense of limitations; (2) Habanos 

fails to establish that the factory was not in use in 2019 and 2020, and (3) Habanos admits that 

during the relevant time period, the confiscated “Property” was used at a minimum for the 

oversight of all tobacco production in Cuba. 

1. DEFENDANT’S DECLARATIONS DO NOT DEFEAT 

JURISDICTION 

Habanos’s Motion goes beyond the scope of jurisdiction and moves to argue the merits of 

the case by raising issues of fact regarding the use the Property (both the Partagas Factory portion 

and the mixed use adjacent to the factory). Motion at 8, 9. Although Habanos attempts to tie in 

use of the Property to its argument regarding due process, it is clear Habanos’ statements regarding 

said use have nothing to do with Habanos’ contacts with the forum. 

5

 Middle District of Florida Local Rule 3.01(a) is similar to Southern District Local Rule 7.1 

(c)(2) insofar as it places a page limit on the memorandum of law submitted with a motion.. 

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As set out in Plaintiffs’ “Opp. to Joint Motion” at 10-12, the statute of limitations is an 

affirmative defense and cannot warrant dismissal of Plaintiffs’ complaint. Although Habanos now 

dresses its limitations argument under the guise of jurisdiction, it remains improper. Jurisdiction 

is proper over Habanos because it affirmatively chose to retain U.S. companies to use U.S. internet 

services to market (“traffic”) in the Property. This was in violation of U.S. law and subjects 

Habanos to jurisdiction. 

Even if the declarations were to be considered, it is obvious that each of the affidavits fail 

to affirmatively preclude the use of the factory portion of the Property for the entire relevant period. 

Plaintiffs allege that “Tabacuba and Habanos have continuously used the RRHSC property without 

authorization from the Rodriguez Family since at least 2010, and likely for many years before that, 

until the present.” Amd. Comp.¶51. Habanos claims that the factory was in a state of deterioration 

not suitable for the production of cigars or other use since April or May of 2015. Declaration of 

Mirel García Días in Support of Habanos dated April 6, 2021 (“Días Decl.”, ECF No. 89-3) ¶ 9. 

Días continues that the factory was in the same state of disrepair at the time of his visit on April 6, 

2021. Id. At ¶10. However, Días’ statement that the factory was not suitable for any use is 

conclusory. It also does not preclude that the factory was in use, even if just for storage and 

shipping. Posner v. Essex Ins. Co., 178 F.3d 1209, 1215 (11th Cir. 1999) (“conclusory assertions 

of ultimate fact are insufficient to shift to the Plaintiffs the burden of producing evidence 

supporting jurisdiction”). 

Similarly, the two other declarations proffered by Habanos limit their knowledge to 

use/non use of the factory through 2018. Declaration of Martha Riquelme Armenteros dated April 

15, 2021 (“Armenteros Decl.”), Declaration of Rafael Agrmonte Hevia dated April 19, 2021 

(“Hevia Decl.”). Of interest, however, is Armenteros’ declaration that claims that the Empresa 

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de Tabaco Torcido “José Martí” (the “Empresa”) ceased using the building in January 2011, but 

employed security guards to keep watch over the allegedly vacant factory. Hevia Decl. ¶4. 

Habanos’ declarations fail to preclude that the factory portion of the Property was in use, 

notwithstanding its state of decay, in 2019 and 2020, even if it was not in use continuously from 

2010. 

Notwithstanding any of the foregoing, Defendant Habanos has confirmed that two entire 

floors of the Property (in the “mixed use” structure) are currently in use by Empresa 

Comercializadora de Tabaco en Rama “La Vega. See Declaration of Jorge Fernández Núñez ¶5 

(ECF No. 89-6). Tabacuba, is the Cuban tobacco monopoly company: “the only economic 

organization in the country that integrally directs tobacco activity in all phases of its production 

chain, from agriculture to marketing.” Both Tabacuba and “La Vega” (the Cuban state tobacco 

leaf monopoly company) have offices in the confiscated Property. See Am. Compl. ¶2. Habanos 

benefits directly from Tabacuba (and La Vega’s) extensive use (trafficking) of the Property for 

management of the day-to-day business of all Cuban tobacco. See id., ¶¶ 8, 9, 10, 53-55, 63 and 

66. The Fernández Decl. confirms additional trafficking. Mr. Fernandez confirms that two entire 

floors of the Property are currently used by La Vega for its offices. From there, it “purchases raw 

tobacco from Cuban farmers and entities located in Cuba and sells this raw tobacco to other Cuban 

entities in Cuba.” See Fernández Decl., ¶¶ 4-5. This includes the tobacco used by Habanos to make 

its Cuban cigars. Even if Habanos at some point stopped using some part of the factory portion the 

Property, Habanos, through its principal Tabacuba’s management of “tobacco activity in all phases 

of its production chain, from agriculture to marketing,” at all times continued to traffic in the 

Property. Habanos’ trafficking also included its marketing and sale of Cigars that used tobacco 

products managed, bought, or sold from the Property. 

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There is no question that notwithstanding Defendant’s declarations, Defendant has not only 

failed to challenge Plaintiffs’ allegations that the Property was in use during at least a portion of 

the relevant time period, but in fact, Defendant has admitted that the Property was used in 

trafficking the Property and Habanos’ tobacco products. Habanos ultimately benefitted from such 

use. 

III. DEFENDANT’S ACTIONS THROUGH ITS AGENTS ESTABLISH PERSONAL 

JURISDICTION 

A. Habanos’s Trafficking Through U.S. Agents and U.S. Internet Services in Violation 

of U.S. Law 

Of particular significance to the instant Motion, beginning in 2017, Habanos’ commercial 

activity using or otherwise benefiting from the confiscated Property, i.e., “trafficking” see 22 

U.S.C. § 6023(13)(ii), was furthered and facilitated by Habanos’ use of official social media 

“portals” operated by Twitter, Instagram and YouTube. The portals were used to market products 

produced, shipped, or stored at or from the confiscated RRHSC Property. See Am. Comp., ¶ 55. 

Habanos’ use of U.S.-based internet services run by U.S. companies (Twitter, Instagram and 

YouTube) is in violation of U.S. law.6

B. Habanos’s Trafficking Through Additional U.S. Agents (Y&R and BCW or their 

subsidiaries) in Violation of U.S. Law 

6 The Habanos-sponsored official social media “portals” established by Twitter, Instagram, 

and YouTube are not exempted by the HBA nor by the Cuban Assets Control Regulations, 31 

C.F.R. Part 515. See 31 C.F.R. § 515.578(a) (authorizing the exportation to Cuba of “services 

incident to the exchange of communications over the internet, such as . . . social networking 

[and] sharing of photos” but only if “such services are widely available to the public at no cost to 

the user”) (emphasis added); id., §515.578(b)(1) (expressly excluding from authorized services 

the: “direct or indirect exportation . . . of services with knowledge or reason to know that such 

services are intended for . . . organizations administered or controlled by the Government of 

Cuba.”) (emphasis added); see also 31 C.F.R § 515.206 (excluding from “exempt transactions” 

the “provision of marketing and business consulting services” and “provision of services to 

market, produce or co-produce, create or assist in the creation of information or informational 

materials.”). 

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Beginning as early as 2010 Habanos also retained WPP through its subsidiary advertising 

agencies. Plaintiffs allege, and Habanos does not dispute, that WPP’s involvement was through its 

U.S. based subsidiaries, Y&R and BCW (or through foreign subsidiaries of Y&R and BCW). The 

use of U.S. companies (or their subsidiaries, even if foreign-incorporated) as marketing and 

distribution agents is also in violation of U.S. law. 7 Y&R and BCW admit that what they term 

companies “using the name and brand” Y&R or BCW, respectively, engaged in marketing 

activities for Habanos.8 They also acknowledge that these companies were at one time subsidiaries 

of Y&R or BCW, respectively, albeit incorporated outside of the U.S.9

C. The Nature of Plaintiffs’ HBA Claims 

As set out more fully in Plaintiffs’ Opp. to Joint Motion, the HBA Claim is a legislatively 

created claim designed to compensate victims of Cuba’s uncompensated confiscation of property. 

The remedy provided by HBA claims is analogous to the remedy available to the true owner, or 

7 See 31 C.F.R § 515.206 (excluding from “exempt transactions” the: “provision of 

marketing and business consulting services” and “provision of services to market, produce or coproduce, create or assist in the creation of information or informational materials.”). 

8 On its separate motion, Y&R and BCW have filed declarations contending that the 

companies, through an unexplained corporate restructuring, were “moved out from” the Y&R or 

BCW corporate “chain” and somehow became instead indirect subsidiaries of WPP. See ECF 93-

1, ¶¶ 19-25 (BCW); ECF 93-2, ¶¶ 22-28 (Y&R). Plaintiffs have filed a motion seeking 

jurisdictional discovery as to the issues raised by the Y&R and BCW Declarations. 

9 There is no dispute that Twitter, Instagram and YouTube are U.S. companies. Nor is it 

disputed that Imperial and Habanos have used Twitter, Instagram and YouTube’s U.S.-based 

internet services for trafficking. Imperial and Habanos’ use of U.S.-based internet services run by 

U.S. companies (Twitter, Instagram and YouTube) is in violation of U.S. law, independently and 

regardless of whether the Y&R and BCW entities are U.S. companies or subsidiaries. Therefore, 

the Court’s exercise of personal jurisdiction over Imperial (and Habanos) is not affected the 

Court’s ruling on the WPP Defendants’ Motion. 

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heirs or successors of the true owner, of stolen property who has a claim for conversion.10 And, 

significantly: “a thief does not acquire good title to stolen property and, therefore, ‘one who 

purchases or acquires property from a thief,’ even in good faith, does not have a right to the 

possession of the goods against ‘the rightful owner.’”11 The HBA attempts to place victims of 

Cuba’s takings in a position analogous to that of the true owner (or his successors or heirs) of 

stolen property. Compensation to the owner or heirs is required instead of the return of confiscated 

or stolen property. The HBA adds the requirement that the trafficking in the confiscated property 

is done “knowingly,”12 i.e., “with knowledge or having reason to know.” 13

D. Habanos is Subject to Personal Jurisdiction 

As discussed above, the Claim created by the HBA is in the nature of a tort akin to 

conversion. The HBA also adds a requirement that the statutory “trafficking” be done 

intentionally. As such, the claim is in the nature of an intentional tort and should be treated as 

such for purposes of analyzing personal jurisdiction. See Louis Vuitton Malletier, S.A. v. 

Mosseri, 736 F.3d 1339, 1353 (11th Cir. 2013) (concluding that “trademark claims allege 

‘tortious acts’ for purposes of Florida’s long-arm statute.”). The HBA claim at issue arises under 

federal law and does not have a direct analogue under state or other federal statutes. Recent cases 

are clear, however, that a defendant’s physical presence in the forum is not necessary for an 

10 See Danopulos v. Am. Trading II, LLC, 69 N.E.3d 157, 159 (Ohio Ct. App. 2016). 

11 See Danopulos, 69 N.E.3d 159 (emphasis added); see also In re Newpower, 233 F.3d 

922, 928–29 (6th Cir. 2000) (noting the “long established at common law [rule] that a thief has 

no title in the property that he steals”); Richardson v. Seattle-First Nat. Bank, 38 Wash. 2d 314, 

315–16, 229 P.2d 341, 342 (1951) (“At common law, except in the market overt, a thief could 

convey no title to his vendee.”) (emphasis added). 

12 See 22 U.S.C. § 6023(13)(A). 

13 See 22 U.S.C. § 6023(9). 

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exercise of personal jurisdiction. See Louis Vuitton, 736 F.3d at 1353 – 54 (discussing the 

Florida long-arm statute). The court in Macrotrend Capital Group Inc. v. Edwards, 18-cv-61327, 

2019 WL 2106421 (S.D. Fla. Mar. 4, 2019) after discussing recent cases found, personal 

jurisdiction appropriate over a defendant who committed a tort while in Michigan because the 

injury was suffered by a corporate plaintiff in Florida. See id. at *5. 

In cases involving trademark infringement and committed by internet postings, Florida 

cases have required that the use of an interactive website. Plaintiffs do not allege that such was 

involved here. A claim under the HBA claim is, however, significantly different. The HBA defines 

“trafficking” to include essentially all commercial use of confiscated property. See 22 U.S.C. § 

6023(13)(A)(i)-(iii). Here the specifical conduct at issue is Imperial’s use of U.S. internet services 

operated by U.S. corporations. This is not a case like the many that Habanos directly and through 

attempted incorporation of Imperial’s Motion, cites involving websites that can generally be 

accessed from anywhere. Imperial expressly contracted with U.S. companies for the use of their 

U.S. based internet services. More importantly, as demonstrated above, Habanos’ trafficking 

through U.S. internet services operated by U.S. corporations is directly prohibited by law, 

including the Cuban Asset Control Regulations (“CACRs”). When Habanos illegally used U.S. 

internet services to further its trafficking of the Property in violation of the HBA, although it did 

so virtually, it deliberately entered the country in order to further its unlawful conduct. This 

conduct provides more than sufficient basis for subjecting Imperial to personal jurisdiction. 

Nor is there any due process or other Constitutional impediment that prevents assertion of 

personal jurisdiction over Habanos. The U.S. Supreme Courts’ recent decision in the recent case 

of Ford Motor Co. v. Montana Eighth Judicial Dist. Court, 141 S. Ct. 1017 (2021), discussed the 

Constitutional standards at length. Discussing “specific jurisdiction” the Court explained: 

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The contacts needed for this kind of jurisdiction often go by the name 

“purposeful availment.” The defendant, we have said, must take “some 

act by which [it] purposefully avails itself of the privilege of conducting 

activities within the forum State.” The contacts must be the defendant's 

own choice and not “random, isolated, or fortuitous. They must show 

that the defendant deliberately “reached out beyond” its home—by, for 

example, “exploi[ting] a market” in the forum State or entering a 

contractual relationship centered there. Yet even then—because the 

defendant is not “at home”—the forum State may exercise jurisdiction in 

only certain cases. The plaintiff ’s claims, we have often stated, “must 

arise out of or relate to the defendant's contacts” with the forum. Or put 

just a bit differently, “there must be ‘an affiliation between the forum and 

the underlying controversy, principally, [an] activity or an occurrence that 

takes place in the forum State and is therefore subject to the State's 

regulation.’ ” 

141 S. Ct. at 1024-25 (emphasis added, citations omitted). In the instant case, of course, 

Habanos’ conduct is particularly apt for the exercise of personal jurisdiction, by its “own choice” 

and not through any “random, isolated, or fortuitous.” Habanos plainly and “deliberately 

‘reached out beyond’ its home.” 

Addressing the need for fairness, the Court made clear that: 

When (but only when) a company “exercises the privilege of conducting 

activities within a state”—thus “enjoy[ing] the benefits and protection of 

[its] laws”—the State may hold the company to account for related 

misconduct. Later decisions have added that our doctrine similarly 

provides defendants with “fair warning”—knowledge that “a particular 

activity may subject [it] to the jurisdiction of a foreign sovereign.” A 

defendant can thus “structure [its] primary conduct” to lessen or avoid 

exposure to a given State's courts. 

Id. at 1026 (emphasis added, citations omitted). Again, this applies with full force to Habanos, 

which had full knowledge that use of U.S. persons to conduct its trafficking could “subject [it] to 

the jurisdiction of a foreign sovereign.” 

The Ford Court held that jurisdiction was proper in Montana because one plaintiff was 

injured there. Even though the allegedly defective car at issue was neither designed, manufactured 

nor sold by Ford in Montana. Like Habanos, Ford argued that: 

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[T]he needed link must be causal in nature: Jurisdiction attaches “only if 

the defendant's forum conduct gave rise to the plaintiff ’s claims.” . . . 

And that rule reduces, Ford thinks, to locating specific jurisdiction in the 

State where Ford sold the car in question, or else the States where Ford 

designed and manufactured the vehicle. On that view, the place of 

accident and injury is immaterial. . . . 

But Ford's causation-only approach finds no support in this Court's 

requirement of a “connection” between a plaintiff ’s suit and a defendant's 

activities. That rule indeed serves to narrow the class of claims over which 

a state court may exercise specific jurisdiction. But not quite so far as Ford 

wants. None of our precedents has suggested that only a strict causal 

relationship between the defendant's in-state activity and the litigation 

will do. As just noted, our most common formulation of the rule demands 

that the suit “arise out of or relate to the defendant's contacts with the 

forum.” The first half of that standard asks about causation; but the back 

half, after the “or,” contemplates that some relationships will support 

jurisdiction without a causal showing. That does not mean anything goes. 

In the sphere of specific jurisdiction, the phrase “relate to” incorporates 

real limits, as it must to adequately protect defendants foreign to a forum. 

But again, we have never framed the specific jurisdiction inquiry as 

always requiring proof of causation—i.e., proof that the plaintiff ’s 

claim came about because of the defendant's in-state conduct. 

Id. at 1027 (emphasis added, citations omitted). 

Again, the discussion applies directly to Habanos’ conduct. Contrary to Habanos’ refrain 

of “extra-territorial” application of the HBA to its conduct in Cuba. Plaintiffs make no such 

assertion. Plaintiffs instead argue that jurisdiction in this forum is appropriate because of 

Habanos’ deliberate conduct in reaching out to and contracting with U.S. companies in order that 

they would use their U.S. internet services to in order to further Imperial’s “trafficking” of 

Plaintiffs’ Property. There is no surprise, no unfairness, nor any Constitutional or other reason 

that the Court should apply to save Habanos from its deliberate conduct. 

Nor is there any reason why jurisdiction in this District is inappropriate. As discussed in 

Plaintiffs’ Opp. to Joint Motion, Congress expressly found that the Cuban Government, had 

forcibly confiscated property from thousands of U.S. Nationals, and thousands more who fled 

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Cuba as refugees and became U.S. Nationals. That includes six of the seven Plaintiffs. It is also 

no surprise that the Plaintiffs would be found in South Florida, as the Court can take judicial 

notice of the many hundreds of thousands of local residents who fled here directly from Cuba or 

whose ancestors did so. As the Ford Court held, the place of the plaintiff’s injury can indeed be 

the Constitutionally appropriate forum. In this regard as well, it is significant that Plaintiffs are 

directly damaged under the HBA when Habanos trafficked in the Property. The place of injury is 

plainly an appropriate forum.14

IV. SERVICE OF PROCESS WAS PROPER 

Habanos also argues that service of process was improper pursuant to Fed. R. Civ. P. 

4(f)(2)(c)(ii) “Serving an Individual in a Foreign Country.” Habanos also acknowledges, however, 

that service was made pursuant to Fed. R. Civ. P. 4(j)(1) and 28 U.S.C. §1608, thus rendering its 

principal argument superfluous. 

Pursuant to Fed. R. Civ. P. 4(j)(1) and 28 U.S.C. §1608 an agency or instrumentality of the 

Cuban government Habanos is properly served by “Serving a Foreign, State, or Local 

Government” and 28 U.S.C. §1608. Habanos argues that it cannot be an instrumentality of the 

Cuban government as Cuba must directly own a majority of shares, and not through any subsidiary.

Defendants’ arguments completely ignore that, under the HBA, the Habanos joint venture 

14 Habanos also requests, improperly, that the Court dismiss the Plaintiffs’ complaint “with 

prejudice”. Motion at 1. Should the Court reject Plaintiffs’ arguments in opposition, it 

nevertheless should not dismiss with prejudice. It is well settled that an adjudication not on the 

merits does not serve to bar a claimant from brining the action again. Abram v. Fulton Cty. 

Gov't, 482 F. App'x 421, 425 (11th Cir. 2012). “Dismissal under Rule 12(b)(4) or Rule 12(b)(5) 

does not constitute a judgment on the merits.” Id. Similarly, dismissal under Rule 12(b)(1) or 

(2) does not constitute an adjudication on the merits. McQueary v. Child Support Enf't, 812 F. 

App'x 911, 914 (11th Cir. 2020) (“If a court lacks subject matter jurisdiction, it also lacks the 

power to dismiss the complaint with prejudice as an adjudication on the merits”). If the Court 

were to conclude that dismissal on Habanos’ Motion was appropriate. Dismissal should not be 

with prejudice. 

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controlled by Cuba is an “agency or instrumentality” of Cuba.15 Service of process was, therefore, 

proper under Rule 4(j)(1) and 28 U.S.C. §1608. This argument also cannot support dismissal. 

V. A MORE DEFINATE STATEMENT IS UNWARRANTED AS DEFENDANT HAS 

ACTUAL KNOWLEDGE OF THE FACTS ALLEGED IN THE COMPLAINT 

Habanos’ claims that it requires a more definite statement in order to better respond to the 

Amended complaint is also without merit. Motion at 20. The Amended Complaint is clear, on its 

face, that Habanos trafficked in the subject Property without compensating the rightful owners, to 

wit, the Plaintiffs. Specifically, Habanos “intentionally lease, possesses, control, manage, use, or 

otherwise acquired or hold an interest in the confiscated RRHSC Property . . . . and continues to 

engage in a commercial activity using or otherwise benefiting from the confiscated RRHSC 

Property without the authorization of the Rodriguez Family.” Am. Compl. ¶54. Habanos and 

Imperial have also “expanded their trafficking by retaining agents to assist in and further their 

trafficking in the property.” Am. Compl. ¶57. Such expansion includes retaining agents to “setting 

15 Under the HBA, “The term ‘agency or instrumentality of a foreign state’ has the meaning 

given that term in section 1603(b) of Title 28. See 22 U.S.C. § 6023(1); see also 28 U.S.C. § 

1603 (a) (“A “foreign state” . . . includes a political subdivision of a foreign state or an agency or 

instrumentality of a foreign state as defined in subsection (b)”); id., § 1603 (b) (“An ‘agency or 

instrumentality of a foreign state’ means any entity-- (1) which is a separate legal person, 

corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision 

thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or 

political subdivision thereof, and (3) which is neither a citizen of a State of the United States . . . 

nor created under the laws of any third country.”) (emphasis added). 

Not only is Habanos an agency/instrumentality of the Cuban government due do its ‘other 

ownership interest”, but it is also an organ of the Cuban government. “The capstone of organ 

designation is ‘whether the entity engages in a public activity on behalf of a foreign government.’” 

Cap. Trans Int'l, LLC v. Int'l Petroleum Inv. Co., No. 8:10-CV-529-T-30TGW, 2013 WL 557236, 

at *6 (M.D. Fla. Feb. 14, 2013), vacated in part, No. 8:10-CV-529-T-30TGW, 2013 WL 12344236 

(M.D. Fla. Feb. 25, 2013) (citing EIE Guam Corp. v. Long Term Credit Bank of Japan, Ltd., 322 

F.3d 635, 640 (9th Cir. 2003))15. “Habanos,S.A. was founded in 1994 to exclusively undertake 

the commercialization of all Habanos brands all over the world.” 

http://www.habanos.com/en/empresa/ “Its corporate purpose is to market all Cuban tobacco 

products . . .. and throughout the rest of the world . . .” Id. 

Case 1:20-cv-23287-DPG Document 101 Entered on FLSD Docket 06/22/2021 Page 14 of 15
15 

up, or directly set up, the sponsored "official" portals . . . on the Twitter, YouTube, and Instagram 

platforms . . . .) Am. Compl. . ¶55. No further statement is warranted at this time. 

CONCLUSION 

For the foregoing reasons and based on the cited authorities, the Court should deny the 

Motion to Dismiss. 

 Respectfully submitted, 

Rodriguez Tramont & Nuñez P.A 

By: /s/ Paulino A. Núñez Jr.

Paulino A. Núñez Jr. 

Florida Bar No. 814806 

Primary email: pan@rtgn-law.com 

255 Alhambra Circle 

Suite 1150 

Coral Gables, FL 33134 

Telephone: (305) 350-2300

Berenthal & Associates, P.A. 

By: /s/_James L. Berenthal

James L. Berenthal 

Florida Bar No.126035 

Primary email: jlb@berenthalaw.com 

255 Alhambra Circle 

Suite 1150 

Coral Gables, FL 33134 

Telephone: (212) 302-9494

Certificate of Service 

I HEREBY CERTIFY that on June 21, 2021, a true and correct copy of the foregoing was 

filed with the Clerk of Court using the CM/ECF system which will send a notification of the 

filing to all counsel and parties of record. 

/s/ Paulino A. Núñez Jr.

Paulino A. Núñez Jr. 

Case 1:20-cv-23287-DPG Document 101 Entered on FLSD Docket 06/22/2021 Page 15 of 15