UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-23287-CIV-GAYLES/OTAZO-REYES

LUIS MANUEL RODRIGUEZ, et al., 

Plaintiffs, 

v. 

 

IMPERIAL BRANDS PLC, et al., 

Defendants. 

______________________________________/ 

ORDER

THIS CAUSE came before the Court upon Plaintiffs Luis Manuel Rodriguez, Maria Teresa 

Rodriguez, Alfredo Ramon Forns, Ramon Alberto Rodriguez, Raul Lorenzo Rodriguez, Christina 

Conroy, and Francisco Ramon Rodriguez’s (“Plaintiffs”) Motion to Amend Complaint (hereafter, 

“Motion to Amend”) [D.E. 168]. This case has been referred to the undersigned by the Honorable 

Darrin P. Gayles, United States District Judge, “for a ruling on all pre-trial, non-dispositive matters 

and for a Report and Recommendation on any dispositive matters.” See Paperless Order Referring 

Case [D.E. 167]. Upon a thorough review of the parties’ submissions, the procedural background, 

and the applicable law, the undersigned GRANTS Plaintiffs’ Motion to Amend. 

PROCEDURAL BACKGROUND

On August 6, 2020, Plaintiffs commenced this action against Defendants Imperial Brands 

plc (“Imperial”), Corporación Habanos, S.A. (“Habanos”), WPP plc (“WPP”), Young & Rubicam 

LLC (“Y&R”), and BCW LLC (“BCW”) (WPP, Y&R, and BCW, together, “WPP Defendants”)

(Imperial, Habanos, and WPP Defendants, collectively, “Defendants”), asserting claims for

violations of the Cuban Liberty and Democratic Solidarity Act of 1996, 22 U.S.C. §§ 6021–6091 

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(hereafter, “Helms-Burton Act”). See Complaint [D.E. 1]. Plaintiffs claim that Defendants have 

trafficked in Plaintiffs’ property, which was confiscated by the Cuban government in 1961, and 

are therefore liable to them under Title III of the Helms-Burton Act, 22 U.S.C. §§ 6081–6085 

(hereafter, “Title III”). Id. ¶ 7. The property consists of a factory and an adjoining mixed-use 

building (together, “the Property”). Id. ¶¶ 1–2. According to Plaintiffs, Imperial, both through 

Habanos and other joint-venture subsidiaries, as well as non-party Tabacuba, has used and 

continues to use the Property without compensation to or authorization from Plaintiffs. Id. ¶ 6. 

These alleged uses include the production and shipment of millions of hand-rolled cigars 

manufactured and/or processed at the Property and their marketing through online portals on the 

U.S.-based social media platforms Twitter, YouTube, and Instagram. Id. ¶¶ 6–10. Plaintiffs seek

to recover from Defendants the money damages allowed by Title III, 22 U.S.C. §§ 6082(a), plus 

court costs and reasonable attorneys’ fees. Id. ¶¶ 60–64. 

On September 23, 2020, the Court granted Imperial’s Motion for a Limited Stay [D.E. 14] 

and administratively closed the case pending Imperial’s receipt of authorization from the European 

Commission to participate in the litigation. See Paperless Order [D.E. 49]. Imperial kept the Court 

apprised of the status of its request for authorization via monthly status reports. See id.; see also

Status Reports [D.E. 51, 52, 59, 61, 64]. On February 12, 2021, upon receiving notice that Imperial 

was authorized to participate in the litigation, the Court reopened the case and lifted the stay. See

Paperless Order [D.E. 69].

 On February 26, 2021, Imperial filed its own Motion to Dismiss the Complaint (hereafter,

“Imperial’s First Motion to Dismiss”) [D.E. 71]. On the same day, Imperial and the WPP 

Defendants filed a Joint Motion to Dismiss the Complaint (hereafter, “Imperial and WPP 

Defendants’ Joint Motion to Dismiss”) [D.E. 72] and the WPP Defendants filed their own Motion 

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to Dismiss the Complaint (hereafter, “WPP Defendants’ First Motion to Dismiss”) [D.E. 74]. On 

March 22, 2021, Habanos filed a Consent Motion to Extend its Time to Respond to the Complaint

(hereafter, “Habanos’ Consent Motion”) [D.E. 81]. On the same day, however, Plaintiffs filed 

their Amended Complaint as a matter of course pursuant to Federal Rule of Civil Procedure 

15(a)(1). See Am. Compl. [D.E. 82]. As a result, on March 23, 2021, the Court denied as moot 

Imperial’s First Motion to Dismiss, Imperial and WPP Defendants’ Joint Motion to Dismiss, the 

WPP Defendants’ First Motion to Dismiss, and Habanos’ Consent Motion. See Paperless Orders 

[D.E. 84, 85]. Thus, Habanos never responded to the original Complaint. 

On April 28, 2021, Defendants filed the following motions to dismiss: 

 Imperial filed its Motion to Dismiss the Amended Complaint (hereafter, 

“Imperial’s Second Motion to Dismiss”) [D.E. 88], arguing that the Amended 

Complaint pleads no basis for personal jurisdiction over Imperial and fails to state 

a claim; 

 Habanos filed its Motion to Dismiss the Amended Complaint (hereafter, “Habanos’ 

Motion to Dismiss”) [D.E. 89], based on lack of subject matter jurisdiction, lack of 

personal jurisdiction, improper venue, insufficient service of process, and failure to 

state a claim or, in the alternative, a more definite statement; 

 Defendants filed their Joint Motion to Dismiss the Amended Complaint (hereafter, 

“Defendants’ Joint Motion to Dismiss”) [D.E. 91], based on failure to state a claim 

and lack of standing; and 

 the WPP Defendants filed their Motion to Dismiss the Amended Complaint 

(hereafter, “WPP Defendants’ Second Motion to Dismiss”) [D.E. 93], based on lack 

of personal jurisdiction and failure to state a claim, and arguing that the Amended 

Complaint should be dismissed with prejudice due to Plaintiffs’ failure to 

“meaningfully respond to [] previously-identified factual deficiencies,” thereby 

rendering any amendment futile. Id. at 26. 

On June 15, 2021, Plaintiffs filed their Motion for Jurisdictional Discovery and to 

Stay/Extend Plaintiffs’ Time to Respond to the WPP Defendants’ Second Motion to Dismiss 

(hereafter, “Motion for Jurisdictional Discovery”) [D.E. 97]. On September 27, 2021, following 

a telephonic status conference, the undersigned granted in part Plaintiffs’ Motion for Jurisdictional 

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Discovery and permitted Plaintiffs to conduct jurisdictional discovery, to be completed by 

November 26, 2021. See Order on Status Conference [D.E. 133]. The undersigned also directed 

Plaintiffs to respond to the WPP Defendants’ Second Motion to Dismiss [D.E. 93] ten days after 

the close of jurisdictional discovery. Id. Additionally, the undersigned set Imperial’s Second 

Motion to Dismiss, Habanos’ Motion to Dismiss, Defendants’ Joint Motion to Dismiss, and the 

WPP Defendants’ Second Motion to Dismiss for evidentiary hearing, to be held on December 8, 

2021. See Paperless Order [D.E. 134].

On October 6, 2021, the WPP Defendants filed an Unopposed Motion to Permit Reply and 

to Continue Hearing Date [D.E. 136]. This relief was granted, and the evidentiary hearing was 

continued to December 15, 2021. See Paperless Order [D.E. 137]. 

 On November 4, 2021, Habanos filed its Motion to Deem Certain Facts as Established for 

Purposes of the Evidentiary Hearing, for Relief In Limine, and for Other Relief (hereafter, “Motion 

to Deem Certain Facts as Established”), wherein Habanos argued, in part, that Plaintiffs’ failure to 

“file any declarations or exhibits, including any to controvert Habanos’ [] [d]eclarations,” with 

their Response in Opposition to Habanos’ Motion to Dismiss precluded Plaintiffs from offering

additional evidence at the evidentiary hearing on the issue of personal jurisdiction. See Motion to 

Deem Certain Facts as Established [D.E. 141 at 6]. Essentially, Habanos requested that the Court 

deem as established for purposes of the evidentiary hearing the jurisdictional facts attested to in 

Habanos’ Motion to Dismiss. Id. at 10–11. Habanos also argued that the Court should first 

determine the sufficiency of Plaintiffs’ service of process on Habanos because “[i]f service of 

process was insufficient, it would moot [Habanos’ Motion to Dismiss].” Id. at 16. 

On November 17, 2021, following a telephonic status conference, the undersigned issued 

an order setting forth the agenda for the forthcoming evidentiary hearing on Imperial’s Second 

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Motion to Dismiss, Habanos’ Motion to Dismiss, Defendants’ Joint Motion to Dismiss, and the 

WPP Defendants’ Second Motion to Dismiss. See Order on Status Conference [D.E. 150]. With 

respect to Habanos’ Motion to Dismiss, the undersigned modified the scope of the evidentiary 

hearing to address only the “portion [of Habanos’ Motion to Dismiss] that challenges the 

sufficiency of service of process on Habanos” and held in abeyance Habanos’ additional arguments 

“pending resolution of the service of process issue.” Id. at 1. On November 23, 2021, Habanos 

filed a Motion to Modify the Court’s Order on Status Conference (hereafter, “Motion to Modify”) 

[D.E. 154], arguing that the principle of judicial efficiency also warranted the Court’s 

consideration of Habanos’ personal jurisdiction arguments at the evidentiary hearing. 

On December 3, 2021, Plaintiffs filed a Notice of Intent to File Motion for Leave to Amend

and Agreed Motion to Postpone Hearing [D.E. 159]. In light of this procedural development, on 

December 6, 2021, the undersigned cancelled the December 15, 2021, evidentiary hearing; and 

denied without prejudice as moot the Motion to Deem Certain Facts as Established [D.E. 141] and 

the Motion to Modify [D.E. 154]. See Paperless Order [D.E. 160]. Additionally, on December 9, 

2021, the undersigned adjourned sine die Plaintiffs’ response to the WPP Defendants’ Second 

Motion to Dismiss and the WPP Defendants’ reply in support of their Second Motion to Dismiss 

pending a ruling on the Motion to Amend. See Order Granting Agreed Motion [D.E. 165]. Thus, 

as of early December 2021, the completion of briefing and the contemplated evidentiary hearing 

relating to Defendants’ various motions to dismiss were suspended in anticipation of Plaintiffs’ 

filing their Motion to Amend. 

On December 20, 2021, Plaintiffs filed their Motion to Amend and proposed Second 

Amended Complaint [D.E. 168, 168-1]. On January 19, 2022: Habanos filed its Response in 

Opposition to the Motion to Amend (hereafter, “Habanos’ Opposition”) [D.E. 169]; Imperial filed 

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its Response in Opposition to the Motion to Amend (hereafter, “Imperial’s Opposition”) [D.E. 

171]; and the WPP Defendants filed their Response in Opposition to the Motion to Amend

(hereafter, “WPP Defendants’ Opposition”) [D.E. 173].1

 On February 26, 2022, Plaintiffs filed 

their Reply in Support of their Motion to Amend (hereafter, “Reply”) [D.E. 180, redacted].2

 The 

Motion to Amend is now ripe for ruling. 

APPLICABLE LAW

 Federal Rule of Civil Procedure 15 (hereafter, “Rule 15”) provides, in pertinent part: 

A party may amend its pleading once as a matter of course within: 

(A) 21 days after serving it, or 

(B) if the pleading is one to which a responsive pleading is required, 21 days 

after service of a responsive pleading or 21 days after service of a motion 

under Rule 12(b), (e), or (f), whichever is earlier. 

Fed. R. Civ. P. 15(a)(1)(A)–(B). “In all other cases, a party may amend its pleading only with the 

opposing party’s written consent or the court’s leave. The court should freely give leave when 

justice so requires.” Fed. R. Civ. P. 15(a)(2). “[T]his mandate is to be heeded.” Foman v. Davis, 

371 U.S. 178, 182 (1962). 

The Court has “extensive discretion in deciding whether to grant leave to amend.” See

Carbiener v. Lender Processing Servs., Inc., No. 3:13-cv-970-J-39PDB, 2014 WL 12616966, at 

*3 (M.D. Fla. Sept. 29, 2014) (citation and quotation marks omitted). Further, 

In the absence of any apparent or declared reason—such as undue delay, bad faith, 

or dilatory motive on the part of the movant, repeated failure to cure deficiencies 

by amendments previously allowed, undue prejudice to the opposing party by virtue 

of the allowance of the amendment, futility of amendment, etc.—the leave sought 

should, as the rules require, be “freely given.” 

1 The WPP Defendants filed two sealed exhibits in support of their Opposition [D.E. 176, filed under seal]. 2 Plaintiffs subsequently filed an unredacted version of their Reply [D.E. 205-1, filed under seal] and sealed 

exhibits in support of their Reply [D.E. 185–204, filed under seal]. 

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Breckenridge Pharm., Inc. v. Metabolite Labs., Inc., No. 04-80090-CIV, 2006 WL 8433861, at *2 

(S.D. Fla. Aug. 3, 2006) (quoting Foman, 371 U.S. at 182); see also Havana Docks Corp. v. 

Carnival Corp., No. 19-cv-21724, 2020 WL 6290159, at *3 (S.D. Fla. Oct. 27, 2020) (same). 

“[T]he thrust of Rule 15(a) is to allow parties to have their claims heard on the merits, and 

accordingly, district courts should liberally grant leave to amend when ‘the underlying facts or 

circumstances relied upon by a plaintiff may be a proper subject of relief.’” Havana Docks, 2020 

WL 6290159, at *3 (quoting Menudo Int’l, LLC v. In Miami Prod., LLC, No. 17-Civ-21559, 2018 

WL 8311386, at *4 (S.D. Fla. Jan. 12, 2018)). 

DISCUSSION

In support of their Motion to Amend, Plaintiffs present the following arguments: 

Plaintiffs seek to amend their complaint to clarify and supplement the allegations 

contained in the [] Amended Complaint based on the information learned during 

jurisdictional discovery. The proposed Second Amended Complaint (“SAC”) 

alleges additional facts regarding this Court’s jurisdiction over [the WPP 

Defendants]. The new facts clarify and add allegations regarding the WPP 

[Defendants’] use of U.S. Services to further trafficking in Plaintiffs’ confiscated

property. The new facts also include allegations of concerted action by the WPP 

[Defendants]. Plaintiffs allege that the WPP [Defendants] provided marketing and 

advertising services for Imperial and Habanos that served to further the alleged []

trafficking at issue, for which all Defendants are liable. The newly alleged 

jurisdictional facts regarding use of U.S. Services, therefore, also affect the 

jurisdictional arguments made by Imperial and Habanos. The SAC will also address 

arguments presented in the Defendants’ motion to dismiss, some [of] which were 

alleged for the first time after Habanos appeared in the action. Finally, the SAC will 

also address Habanos’ argument regarding [the] propriety of service of process on

Habanos as an agency or instrumentality of the Cuban government. 

. . . 

This action is still in its preliminary stages. There is no scheduling order limiting 

the parties’ time for amending pleadings and the action has not been scheduled for 

trial.

See Motion to Amend [D.E. 168 at 2–3]. Plaintiffs further argue that their request to amend is 

timely because jurisdictional discovery was only completed on November 26, 2021, and 

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Defendants have not yet answered an operative complaint. Id. at 4. Finally, Plaintiffs argue that 

amendment would further the Court’s preference for determining claims on their merits and that 

the Motion to Amend is not made in bad faith, to delay the case, or to prejudice Defendants. Id.

at 5. 

In opposition to the Motion to Amend, Habanos argues that Plaintiffs’ new allegations 

against it are unduly delayed. See Habanos’ Opposition [D.E. 169 at 9]. Habanos also argues that 

amendment would be futile because the proposed Second Amended Complaint fails to allege 

personal jurisdiction, venue, and sufficient service of process with respect to Habanos and is barred 

by Title III’s statute of repose. Id.

Imperial similarly argues that amendment would be futile because the proposed Second 

Amended Complaint fails to: allege personal jurisdiction with respect to it; state a claim for relief 

under Title III; and plead a concrete injury. See Imperial’s Opposition [D.E. 171 at 5–6].

Finally, the WPP Defendants also contend that amendment would be futile because the 

proposed Second Amended Complaint fails to: allege personal jurisdiction with respect to them; 

and state a claim for relief under Title III. See WPP Defendants’ Opposition [D.E. 173 at 7–8]. 

The WPP Defendants also argue that there has been undue delay. Id. at 8.

In summary, Defendants oppose the Motion to Amend on grounds of undue delay and 

futility. 

1. Undue delay 

As Plaintiffs note in their Motion to Amend, a scheduling order prescribing a deadline by 

which to amend pleadings has not yet been entered in this case. See Motion to Amend [D.E. 168 

at 3]. Further, as discussed above, Plaintiffs completed the jurisdictional discovery that was 

allowed by the undersigned by the November 26, 2021, deadline; and they filed their Motion to 

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Amend less than a month later, on December 20, 2021. Given the absence of a scheduling order 

and Plaintiffs’ promptness in moving to amend after the conclusion of jurisdictional discovery, 

there is no basis in the record for a finding of undue delay. See, e.g., Int’l Schs. Servs., Inc. v. 

AAUG Ins. Co., Ltd., No. 10-62115-CIV, 2012 WL 5192599, at *2 (S.D. Fla. June 6, 2012) 

(granting motion to amend, in part, because “there [was] no scheduling order in place, nor [was] 

there a deadline for amending pleadings”); cf. Carruthers v. BSA Advert., Inc., 357 F.3d 1213, 

1218 (11th Cir. 2004) (affirming denial of leave to amend complaint upon a finding of undue delay 

when the plaintiff moved to amend six months after the amendment deadline and two months after 

the close of discovery, in addition to other deficiencies). 

Habanos argues that leave to amend should not be granted because Plaintiffs could have 

made certain allegations at the commencement of the action. See Habanos’ Opposition [D.E. 169 

at 11]. The WPP Defendants also oppose amendment on the grounds that Plaintiffs were aware of 

“purportedly ‘new’ facts since as early as March 2020”. See WPP Defendants’ Opposition [D.E. 

173 at 8]; id. at 21–22 (listing the specific factual allegations in the proposed Second Amended 

Complaint that the WPP Defendants claim are not “new”). However, even if, as claimed by 

Habanos and the WPP Defendants, Plaintiffs had earlier knowledge of some of the facts alleged 

in the proposed Second Amended Complaint, this does not render their Motion to Amend after 

jurisdictional discovery and full presentation of the discovered facts subject to denial for undue 

delay. See, e.g., Exhibit Icons, LLC v. Xp Cos., LLC, No. 07-80824-CIV, 2008 WL 11333232, 

at *1 (S.D. Fla. Oct. 29, 2008) (finding no undue delay or prejudice and granting motion to amend 

where plaintiffs moved to amend after conclusion of court-permitted jurisdictional discovery and 

within the deadline for amendment of pleadings). 

Therefore, the undersigned concludes that undue delay does not provide a basis for denying 

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Plaintiffs’ Motion to Amend pursuant to Rule 15(a)(2). 

2. Futility

All Defendants contend that amendment would be futile because the proposed Second 

Amended Complaint fails to allege personal jurisdiction with respect to them. See Habanos’ 

Opposition [D.E. 169 at 11–19]; Imperial’s Opposition [D.E. 171 at 8–13]; WPP Defendants’ 

Opposition [D.E. 173 at 9–12]. Imperial and the WPP Defendants further argue that amendment 

would be futile because the proposed Second Amended Complaint fails to state a claim for relief 

under Title III. See Imperial’s Opposition [D.E. 171 at 13–14, 16–18]; WPP Defendants’ 

Opposition [D.E. 173 at 13–20]. Imperial also argues futility on the grounds that the proposed 

Second Amended Complaint fails to plead a concrete injury. See Imperial’s Opposition [D.E. 171 

at 14–15]. Finally, Habanos argues that amendment would be futile because the proposed Second 

Amended Complaint fails to allege venue and sufficient service of process with respect to it, and 

the action is barred by Title III’s statute of repose. See Habanos’ Opposition [D.E. 169 at 19–28]. 

However, as argued by Plaintiffs, their amended pleading seeks to correct the deficiencies 

articulated by Defendants, many of which were previously argued in the various Motions to 

Dismiss. See Motion to Amend [D.E. 168 at 2–3]; see also Imperial’s Second Motion to Dismiss 

[D.E. 88]; Habanos’ Motion to Dismiss [D.E. 89]; Defendants’ Joint Motion to Dismiss [D.E. 91]; 

WPP Defendants’ Second Motion to Dismiss [D.E. 93]. Given this procedural posture, the 

undersigned cannot conclude that the proposed Second Amended Complaint is “clearly 

insufficient or frivolous on its face”. See Montes v. M & M Mgmt. Co., No. 15-80142-CIV, 2015 

WL 11254703, at *1 (S.D. Fla. May 12, 2015) (citations omitted) (granting leave to amend and 

noting that “leave to amend should not be denied on the ground of futility unless the proposed 

amendment is clearly insufficient or frivolous on its face”). Rather, Defendants’ futility arguments 

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“are better reserved at a later stage of the case.” Menudo, 2018 WL 8311386, at *4 (granting 

motion to amend); see also Kika M2M LLC v. Pittman, No. 17-60283-CIV, 2017 WL 7732438, 

at *2 (S.D. Fla. June 8, 2017) (granting motion to amend, finding that “[t]he issue of personal 

jurisdiction is of the utmost importance; the Court will decide that issue upon a [m]otion to 

[d]ismiss the [second amended complaint] for lack of personal jurisdiction”); Shoes by Firebug 

LLC v. Stride Rite Childs.’ Grp., LLC, No. 4:16-CV-00899, 2017 WL 4682092, at *2 (E.D. Tex. 

Oct. 18, 2017) (“[F]utility is not dependent upon venue considerations. As such, the Court finds

[that a motion to amend] is neither the time nor the place to make such arguments.”). 

Therefore, the undersigned concludes that Defendants’ futility-based objections to the 

Motion to Amend should be more fully and fairly addressed in the context of any future motions 

to dismiss that Defendants may file in response to the Second Amended Complaint. 

CONCLUSION

 Based on the foregoing considerations, it is 

ORDERED AND ADJUDGED that Plaintiffs’ Motion to Amend [D.E. 168] is 

GRANTED. Plaintiffs may file their proposed Second Amended Complaint instanter. 

DONE AND ORDERED in Chambers at Miami, Florida, this 9th day of March, 2022. 

__________________________________ 

ALICIA M. OTAZO-REYES

UNITED STATES MAGISTRATE JUDGE

cc: United States District Judge Darrin P. Gayles

Counsel of Record 

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