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.

PLAINTIFFS' MOTION FOR LEAVE TO AMEND 

PLAINTIFFS’ OBJECTIONS TO THE

REPORT AND RECOMMENDATION ON

DEFENDANTS’ MOTIONS TO DISMISS THE SECOND AMENDED COMPLAINT

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Plaintiffs, by and through undersigned counsel, hereby respectfully move this Court grant

Plaintiff’s leave to amend their previously filed timely Objections (the “Objections” [D.E. 287]) to

the Honorable Magistrate Judge Alicia M. Otazo-Reyes’s Report and Recommendation dated

November 2, 2022 (the “R&R” [D.E. 286]) dismissing the Second Amended Complaint (“SAC”

[D.E. 208]), and state as follows:

PROCEDURAL BACKGROUND1

On November 2, 2022, Magistrate Judge Alicia M. Otazo-Reyes issued her R&R

recommending dismissal of the action without prejudice against all Defendants due to the alleged

improper venue for Defendant Corporación Habanos, S.A. (“Habanos”). Habanos, in its motion,

argued, inter alia, that venue was improper as Habanos was served with process under the Foreign

Sovereign Immunity Act as an extension of the Cuban government2, and as such, venue was only

properin either California, the District of Columbia or New York. [D.E. 225 at 18]. The Magistrate

recommended that Habanos’ Motion to Dismiss be granted (without prejudice) for improper venue

pursuant to Fed. R. Civ. P. 12(b)(3) and that the action against all the remaining defendants be

dismissed (without prejudice)- notwithstanding that the remaining defendants had waived venue by

not raising the issue in their motions to dismiss. R&R at 2-3, 6 n.3. As the R&R dismissed the

defendants on the basis of venue, the R&R did not rule on any of the other issues raised in the

defendants’ motions to dismiss, including issues pertaining to personal jurisdiction. 

On November 16, 2022, Plaintiffs filed their Objections [D.E. 287] focusing on two points:

1 The following is an abbreviated version of the facts and as such does not encompass all of

the allegations in the SAC. The omission of any fact and/or allegation found in the SAC is not

intended waive or put in to dispute such allegation.

2

 Habanos also explicitly denied that it was/is an extension of the Cuban government.

1

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(1) the Magistrate erred in dismissing the remaining (other than Habanos) defendants due to

improper venue as (i) the remaining defendants waived venue and (ii) even had the defendants not

waived venue it was improper to sua sponte rule on venue without providing the parties an

opportunity to submit argument; and (2) that in the alternative, if venue was found to be improper

for the remaining defendants, the Magistrate erred by not transferring the case to the Southern

District of New York as the Second Amended Complaint sufficiently alleges that (i) venue is

appropriate in the Southern District of New York and (ii) that Plaintiffs stand to be substantially

prejudiced if the action were dismissed and the case required to be re-filed.

On November 21, 2022, Defendants moved for an extension of time to file their response to

the Objections [D.E. 288] and on November 22, 2022, the Court, by paperless order granted

defendants’ motion and extended Defendants time to file their response to the Objections on or

before December 7, 2022 [D.E. 291]3. On the same date, November 22, 2022, the 11th Circuit Court

of Appeals published their decision in Del Valle v. Trivago GMBH, 20-12407, 2022 WL 17101160

(11th Cir. Nov. 22, 2022). Similar to the instant action, Del Valle revolves around claims asserted

under the Helms-Burton Act (the “HBA”) and bears directly on the instant Action. More to the

point, the ruling in Del Valle directly addresses the issue discussed by the Magistrate in her R&R,

as well as the arguments in the underlying motions to dismiss, and supports Plaintiffs’ contentions

that the Magistrate erred in her decision. In light of the Del Valle ruling, Plaintiffs wish to amend

their R&R as set forth herein.

3 A meet and confer was held on November 29, 2022 and the Defendants declined to agree

to the relief requested herein. Although the instant motion may effect Defendants’ anticipated

response to the Objections, Defendants were made aware of this motion and the relief sought.

2

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LEGAL ARGUMENT

I. THE COURT MAY CONSIDER THE OBJECTIONS SET FORTH IN THIS

MOTION

The deadline imposed by Fed. R. Civ. P. 72(b)(3) is not jurisdictional, and a Court may

consider late objections. Kruger v. Apfel, 214 F.3d 784, 786–87 (7th Cir. 2000). Further as

demonstrated by this Court in its November 22, 2022 order, the Court may extend the deadlines set

forth in Fed. R. Civ. P. 72 including the deadline to submit objections. In the instant matter, the

Plaintiffsrespectfully request that the Court extend Plaintiffs’ time to submit objections to the R&R

based on the new legal precedent set forth in the Del Valle case. Filing a Notice of Supplemental

Authoritywould be insufficient as a Notice of Supplemental Authorityis limited to 200 words, under

Local Rule 7.8. Furthermore, granting the instant motion does not prejudice the Defendants at all

– Defendants will still have an opportunity to file their response to the Objections as amended.

II. PLAINTIFFS’ AMENDMENTS/SUPPLEMENT TO THE OBJECTIONS

Plaintiffs seek to amend the Objections in two respects. First, in light of the Objections and

the decision in Del Valle, Plaintiffs respectfully request that, upon recognizing the validity of the

Plaintiffs’ Objections, the Court remand the matter back to the Magistrate for further consideration

and to review the matter in accordance with the ruling set forth in Del Valle, and that the Court allow

the parties to submit an additional briefing based on the ruling in Del Valle4. 

Second, Plaintiffs seek to clarify Plaintiffs’ objection to the Magistrate’s recommendation

that the action be dismissed and not transferred to the Southern District of New York. While

4 The additional briefing is necessary as a Notice of Supplemental Authority under Local

Rule 7.8 is limited to 200 words, which is insufficient to properly explore the effect of the Del Valle

case. 

3

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Plaintiffs continue to maintain that the R&R is in error, Plaintiffs' request to transfer to the Southern

District of New York should be considered as a request in the alternative only in the event that the

Court either agrees with the Magistrate's finding as to venue for the remaining defendants, or in the

alternative that the Court, upon de novo review, finds jurisdiction to be lacking over the remaining

defendants.

CONCLUSION

Wherefore, Plaintiffs respectfully request that the Court amend the Plaintiffs’ Objections

to incorporate the amendments stated herein.

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/ David W. Berenthal 

David W. Berenthal

Florida Bar No. 159220

E-mail: dwb@berenthalaw.com

255 Alhambra Circle

Suite 1150

Coral Gables, FL 33134

Telephone: (212) 302-9494

CERTIFICATE OF GOOD FAITH CONFERENCE;

CONFERRED BUT UNABLE TO RESOLVE ISSUES PRESENTED IN THE MOTION

Pursuant to Local Rule 7.1(a)(3)(A), I hereby certify that counsels for the movant have

conferred with all parties or non-parties who may be affected by the relief sought in this motion in

a good faith effort to resolve the issues but have been unable to resolve the issues. 

/s/ David W. Berenthal

David W. Berenthal, Esq.

4

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CERTIFICATE OF SERVICE

I hereby certify that on December 2, 2022, 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/ David W. Berenthal 

David W. Berenthal, Esq.

5

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