\ 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' MEMORANDUM OF LAW IN OPPOSITION TO

DEFENDANT CORPORACIÓN HABANOS, S.A.'S MOTION TO DISMISS

SECOND AMENDED COMPLAINT WITH PREJUDICE

AND FOR OTHER RELIEF

1

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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 "RRHSC Property"

1

). The Castro

government confiscated ownership of RRHSC, which was then owned byPlaintiffs' ancestor Ramon

Rodriguez Gutierrez ("RRG") , and the RRHSCPropertywithout compensation to RRG. See Second

Amended Complaint (“SAC”) [ECF No. 82]. 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 the Cuban government through

Cuba’s tobacco monopoly company, "Tabacuba." Habanos is the result of that joint venture,

controlled by Cuba with financial interests owned 50% by Imperial and 50% by Cuba. See SAC ¶5-

7. At all relevant times , 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 SAC ¶6. Habanos has "trafficked" in the Propertywithout compensation

to Plaintiffs in violation of the HBA.

1 Throughout its motion, Habanos attempts to separate the factory located on the RRHSC

Property from the mixed used building on the the RRHSC Property. Such a distinction is irrelevant

as both structures comprise the RRHSC Property, and the use of either structure constitutes

trafficking the RRHSC Property. As Habanos has confirmed that two entire floors of the RRHSC

Property (in the “mixed use” structure) are currently in use byEmpresa Comercializadora de Tabaco

en Rama “La Vega”a/k/a Tabacuba (See Declaration of Fernández Núñez Decl. ¶5 (ECF No. 89-6)),

it does not matter whether or not the factory portion was in use at any given time – the RRHSC

Property was being trafficked.

2

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Habanos moves to dismiss the SAC contending, inter alia, that the Court lacks venue, and

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 ARGUMENT

I. VENUE IN THE SOUTHERN DISTRICT OF FLORIDA IS PROPER

Defendant Habanos argues that 28 U.S.C. § 1391(f), service on a foreign state, requires that

venue be in the jurisdiction where the events or omissions occurred, or a judicial district in which

the defendant is licensed to do business, or the United States District of Court for the District of

Colombia. Of note is that Habanos maintains that it is not an agency/instrumentality/organ of the

Cuban government. Notwithstanding, venue is proper in the Southern District of Florida as the

trafficking, as defined by the HBA, occurred in Florida.

HBA claims are relatively novel and raise issues under federal law that do not have direct

analogues under state or other federal statutes. Claims under the HBA are significantlydifferent than

cases involving trademark infringement over the internet (and for the latter, Florida cases have

required the use of an interactive website to establish jurisdiction). A claim under the HBA is in the

nature of an intentional tort, akin to conversion, and as such, should be treated as an intentional tort

for the 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.").

In cases involving intentional torts, a defendant is deemed to have purposefully availed itself

3

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of the forum if the defendant committed an intentional tort, aimed at the forum2

, that caused an injury

within the forum. Aviation One of Florida, Inc. v. Airborne Ins. Consultants (PTY), Ltd, 722 Fed.

Appx. 870, 879–80 (11th Cir. 2018) (citing Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210,

1220 n.28 (11th Cir. 2009). “[In some cases, as with an intentional tort, the defendant might well fall

within the State's authority by reason of his attempt to obstruct its laws.” J. McIntyre Mach., Ltd. v.

Nicastro, 564 U.S. 873, 880 (2011)

Recent cases are clear that a defendant's physical presence in the forum is not necessary for

an 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. Jurisdiction was appropriate because the

activities had a sufficient contact to the forum, thus venue is also appropriate.

The HBA defines "trafficking" to include essentially all commercial use of confiscated

property. See 22 U.S.C. § 6023(13)(A)(i)-(iii). Furthermore, a party traffics in confiscated property

when the party “causes, directs, participates in, or profits from, trafficking (as described in clause

(i) or (ii)) by another person, or otherwise engages in trafficking (as described in clause (i) or (ii))

through another person.” Here the specific conduct at issue is the promotion and advertisement of

Habanos’ products via U.S. internet services operated by U.S. corporations (co-defendants Young

2

In the Calder action, the Supreme Court found that an intentional tort was “aimed” at the

forum when the defendant knew that the injury would be felt in the forum state. Calder v. Jones, 465

U.S. 783, 789 (1984)

4

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& Rubicam and BCW) who maintained offices in Miami, Florida3

. This is not a case comparable to

those cited by Habanos involving websites or advertisements that can generally be accessed from

anywhere. Habanos' trafficking through U.S. internet services operated by U.S. corporations is

directlyprohibited bylaw, including the Cuban Asset Control Regulations("CACR")

4

. Habanos’ use

of U.S. internet services to further its trafficking in violation of the HBA, constitutes an entry into

and trafficking with the Southern District of Florida. Although it did so virtually, Habanos

deliberately entered the country to make use of its internet services via United States social media

portals, and thus, by extension deliberately entered Florida in order to further its unlawful conduct.

“[I]n some cases, as with an intentional tort, the defendant might well fall within the State's authority

by reason of his attempt to obstruct its laws . . . it is the defendant's purposeful availment that makes

jurisdiction consistent with ‘traditional notions of fair play and substantial justice.’” J. McIntyre

Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011)5). Habanos’ conduct provides more than sufficient

basis for establishing Florida as the proper venue.

3 As alleged in the SAC, Habanos’ products consist of Cuban tobacco, and the product and

sale of which is managed by Tabacuba who wrongfully traffics the RRHSC Property by using it in

its operations. Furthermore, as alleged in the SAC, Habanos uses the RRHSC Property for the

manufacture, storage, and/or shipping of its cigars. SAC ¶¶10, 11, 12, 16, 18.

4 That the advertisements and promotions violate CACR further demonstrates that Habanos

should be subject to Federal jurisdiction.

5 Although the Court in J. McIntyre found jurisdiction to be lacking, the Court was concerned

with the State’s authority and due process under the Fourteenth Amendment of the United States

Constitution. In the instant action, the Courts due process concerns are analyzed under the Fifth

Amendment as the claims at issue are federal claims being litigated in a federal court. (“For

jurisdiction, a litigant may have the requisite relationship with the United States Government but not

with the government of any individual State.” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884

(2011) 

5

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A. IF VENUE IS LACKING, TRANSFER IS THE PROPER RELIEF

Pursuant to 28 U.S.C. § 1603, when a defendant properly challenges a court’s venue, when

it is in the interest of justice, the district court should transfer the case to a district where venue is

proper. 28 U.S.C. § 1406. Enright v. Principal Life Ins. Co., 20-21969-CIV, 2020 WL 5505420, at

*3 (S.D. Fla. Aug. 17, 2020), report and recommendation adopted, 20-21969-CIV, 2020 WL

5500780 (S.D. Fla. Sept. 11, 2020) (transfer is preferred to prejudicing Plaintiff with a dismissal).

A claimant under the HBA may only bring a claim for trafficking that occurred no more than two

years prior to the commencement of the action. 22 U.S.C. §6084. Dismissal of the action would

materially prejudice the Plaintiffs as they would be barred from asserting claims for trafficking that

occurred more than two years prior to the date of commencing a new action6, and it is in the interest

of justice that if venue is lacking the action be transferred to a court with proper venue. Justice

requires that if venue is inappropriate, the Court transfer the action to a court of proper venue, either

in the District of Columbia 28 U.S.C. §1391(f)(4) or elsewhere (and, if necessary, sever the action

against the other defendants) . Viva Voyage, LLC v. Rovia, LLC, 20-CV-80838, 2020 WL 9071425,

at *3 (S.D. Fla. Oct. 19, 2020) (upon transfer to a forum of suitable venue, motion to dismiss is

denied as moot with leave to re-file).

II. THE COURT HAS SUBJECT MATTER JURISDICTION AND PERSONAL

JURISDICTION OVER THE DEFENDANT.

The HBA explicitly provides that “[t]he term ‘Cuban Government’ includes any agency or

instrumentality of the Government of Cuba” and that “the term ‘agency or instrumentality of the

Government of Cuba’ means an agency or instrumentality . . . as defined in section 1603(b) of Title

6 Since the action was first commenced, Imperial has divested itself of its interest in Habanos,

and it is unknown if Y&R or BCW have continued to traffic in the last two years.

6

Case 1:20-cv-23287-DPG Document 263 Entered on FLSD Docket 06/09/2022 Page 6 of 25
28 . . .” 22 U.S.C. 6023 (5)(A),(B). Thus, under the HBA, by extension under and reference to the

Foreign Sovereign Immunities Act:

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.

28 U.S.C. §1603(b) (emphasis added)

7

Contrary to Habanos’ allegation, FSIA is not the source of subject matter jurisdiction – the

Helms Burton Act, pursuant to which this action has been instituted, is the source of subject matter

jurisdiction. 28 U.S.C. §1331, 22 U.S.C. §6081 et seq. “It is extremely difficult to dismiss a claim

for lack of subject matter jurisdiction.” Garcia v. Copenhaver, Bell & Associates, M.D.'s, P.A., 104

F.3d 1256, 1260 (11th Cir. 1997)

While Habanos argues that the SAC is defective as it alleges that Cuba owns only 50% of

Habanos directly or through other entities8, and thus is not a direct majority shareholder, the

argument ignores that Habanos is a joint venture controlled by Cuba (SAC ¶7), and the Government

of Cuba has a majority interest by virtue of its fifty percent ownership and control over Habanos

rendering Habanos an “agency or instrumentality” of Cuba. Furthermore, as alleged in the SAC,

Habanos is an “organ” of the Cuban government. SAC ¶9. "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.

7 Under the HBA, the term 'agencyor instrumentality of a foreign state' has the same meaning

as that provided in 28 U.S.C. §1603(b). See 22 U.S.C. § 6023(1) 

8

 Once again, Habanos does not deny these allegation.

7

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

25, 2013)9(citing EIE Guam Corp. v. Long Term Credit Bank of Japan, Ltd., 322 F.3d 635, 640 (9th

Cir. 2003)). Habanos has represented that "Habanos, S.A. was founded in 1994 to exclusively

undertake the commercialization of all Habanos brands all over the world" and "[i]ts corporate

purpose is to market all Cuban tobacco products . . .. and throughout the rest of the world . . ."10

---

the very same tobacco that is purchased and sold by the Cuban Government’s through its monopoly,

Tabacuba. (SAC ¶¶12, 17, 18 at the RRHSC Property). Habanos “is engaged, inter alia, in the trade,

marketing, and advertising of Cuban cigars and related products, including cigar accessories,

throughout the world, including in Cuba, and the export of Cuban cigars and related products

throughout the world . . . .made in Cuba from 100% Cuban-grown tobacco”. Corporacion Habanos,

S.A. v. Kreteck Int’l, Inc., Opposition No. 91237938 (TTAB 2017), D.E. No. 1.11 Habanos has also

previously admitted to promoting and advertising its products, cigars are made in Cuba from 100%

Cuban grown tobacco, in United States. Corporacion Habanos, S.A. v. Xikar, Inc., Opp. No.

91186534 (TTAB2008), D.E. No. 1

12

. Habanos does not, and indeed cannot, deny these allegations.

Moreover, as alleged in the SAC, “Habanos has engaged and continues to engage ‘in a commercial

activity using or otherwise benefitting from’ the RRHSC Property”, (SAC ¶41), “this action is based

9 Habanos also relies on Cap. Trans. Int’l, LLC for the premises that Habanos is a “purely

commercial venture” and surmises that such a company cannot be “an organ”. However the Court

in Capital Trans. Int’l LLC was clear that the issue is whether the entity serves a national purpose.

“The key inquiry is whether the entity serves primarily a private interest, such as profit maximizing,

or a public interest, such as industry protection or economic stabilization” Capital Trans Intern.,

LLC v. Int'l Petroleum Inv. Co., 8:10-CV-529-T-30TGW, 2013 WL 557236, at *9 (M.D. Fla. Feb.

14, 2013), vacated in part, 8:10-CV-529-T-30TGW, 2013 WL 12344236 (M.D. Fla. Feb. 25, 2013)

10

http://www.habanos.com/en/empresa/

11

https://ttabvue.uspto.gov/ttabvue/v?pno=91237938&pty=OPP&eno=1 . 

12

https://ttabvue.uspto.gov/ttabvue/v?pno=91186534&pty=OPP&eno=1

8

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upon a commercial activity carried on in the United States by Habanos through its agents, and acts

performed in the United States in connection with Habanos’ commercial activity, or upon acts

performed outside the United States in connection with a commercial activity of the Cuban

government that causes a direct effect in the United States” (SAC ¶42). As other Courts have found,

Habanos, S.A. is the marketing arm of Cubatabaco13

. Empresa Cubana Del Tabaco v. Culbro Corp.,

213 F. Supp. 2d 247, 263 (S.D.N.Y. 2002). As known in the cigar industry, “Habanos S.A. is the

Cuban organization that oversees the country’s state-run cigar industry.”14 Habanos exists to market

the Cuban Government’s tobacco products. There is no doubt that under the HBA, Habanos is an

organ of the Cuban government used to market Cuba’s tobacco products.15

What Habanos conveniently overlooks in its argument is that Cuba, under its communist

government, nationalized its tobacco industry.

16 The growing, harvest, manufacture, promotion and

13Cubatabaco, a.k.a. Empresa Cubana del Tabaco is the Cuban Government’s tobacco

company. 

https://www.bloomberg.com/news/features/2015-02-27/the-cuban-cigar-king-sets-his-sights-on-a

merica 

14

 https://www.cigaraficionado.com/company/habanos-s-a

15 Defendant claims that the social media effect cannot be the direct effect of the use of the

factory portion of the RRHSC Property, and points to the Declarations of Lisset Fernandez Garcia

(ECF No. 225-1), Martha Riquelme Armenteros (ECF 89-5), Juan Luis Arias (ECF 117-1), Mirel

Garia Dias (ECF No. 89-3) and Rafael Agramonte Hevia (ECF No. 89-4), in support of their

argument that Habanos could not have used the factoryportion in recent history. As mentioned infra,

these declarations are, in fact, Habanos attempt to introduce factual evidence for its motion to

dismiss for failure to state a claim and should not be considered. Notwithstanding, even if everything

in Habanos’ declarations were true, the products ultimately trafficked by Habanos could have been

created in the factory when it was in use. Furthermore, each of the declarations fail to affirmatively

preclude that the factory portion of the RRHSC Property was not in use, even if just for storage,

packing 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”). See ECF No. 101, 5-6.

16 On the 15th dayof September, 1960, the revolutionarygovernment of the Republic of Cuba

promulgated resolution number 20260 of its Ministry of Labor, by which it ‘intervened’ the Cuban

9

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sale of Cuban tobacco products are government activities spread out amongst the wide body of

Cuba’s various entities. Habanos is but one organ that handles the promotion and sale of Cuban

tobacco.

A. THE COMMERCIAL EXCEPTION TO FSIA APPLIES

Habanos claims that it is not subject to the commercial activity exception, however Habanos

misunderstands the nature of the HBA and the Sequeira case, upon which it relies. Sequeira v. Rep.

of Nicaragua, 815 F. App’x 345 (11th Cir. 2020). In Sequeira, the Court found that “‘public acts,’

such as takings, are not considered commercial activities”. Sequeira, 815 Fed. App’x. at 350 (11th

Cir. 2020), cert. denied, 141 S. Ct. 898 (2020). But participation in transactions akin to those of a

private party are commercial activities. Id. “Public acts . . . require sovereign power and thus cannot

be performed by a private party. . . . public acts must make use of the state's sovereign authority.”

Beg v. Islamic Republic of Pakistan, 353 F.3d 1323, 1325 (11th Cir. 2003)). 

Plaintiffs’ claims under the HBA are not claims for the wrongful taking of the RRHSC

Property, but rather claims for trafficking the propertyas the Defendants have been unjustly enriched

bytheir actions. Habanos has benefitted from Tabacuba’s use of the RRHSC Propertyas it ultimately

provided Habanos with tobacco products to market and promote (said tobacco having beenmanaged,

purchased and sold (if not assembled, packed and shipped) from the RRHSC Property). Habanos

engaged in trafficking by marketing/promoting the Cuban tobacco goods. U.S.C.§ 6023(13)(A)

These sales/marketing/promotion are not “public acts” but rather transactions similar to those in

which an individual engages (retaining publicity firms, internet/social media marketing, press

tobacco industry. Tabacalera Severiano Jorge, S. A. v. Standard Cigar Co., 392 F.2d 706, 709 (5th

Cir. 1968)

10

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releases).

Further, Habanos’ trafficking constitutes an action carried on in the United States. As alleged

in the SAC, Habanos, through its agents, set up “portals” to market Habanos products on U.S. based

social media platforms, and on internet domains controlled by Y&R and/or BCW (U.S. companies)

(SAC ¶¶22, 23, 41, 42). Defendant argues that the activity happened outside of the United States,

however, even if activity occurred outside the United States, there was a direct effect in the United

States. Habanos’ through its agents, deliberately availed itself of U.S. based social media platforms

and domains controlled by U.S. Companies, and such trafficking ultimately harmed the Plaintiffs.

There was an unbroken chain of actions and activities, starting from the use of the RRHSC Property

by Tabacuba and Habanos for the acquisition of the raw product and continuing on to the

elaboration, packaging, warehousing, distribution and culminating in the promotion and

advertisement of the tobacco goods by Habanos using United States companies and social media

platforms. The “direct effect”a is the trafficking conducted by Habanos through the use of the

RRHSC Property, and Habanos’ use of United States companies and social media portals to market

and promote the trafficked goods. See infra.

III. HABANOS FAILS TO REFUTE THAT IT IS AN AGENCY AND/OR

INSTRUMENTALITY OF THE CUBAN GOVERNMENT

Habanos, in its motion, states that it is not an “agency or instrumentality” of the Cuban

government (Motion at 7), yet it failed to submit any sworn statements from authorities with actual

knowledge on the matter. Rather than offering the testimony of its officers, directors and/or

employees17, Habanos offers a opinion on Cuban law in the form of Professor Marta Milagro Moreno

17

In fact, Habanos did file the Declaration of Lisset Fernandez Garcia, the legal director of

Habanos, but she does not testify to anyaspect of Habanos’ relationship (or lack of such relationship)

11

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Cruz’s declaration.

As a preliminary matter, Professor Cruz’s declaration is suspect. Although Plaintiff’s

maintain that Cuban law is not relevant in this matter, Fed, R, Civ. Pro. 44.1 required Habanos to

provide advance notice of its reliance on foreign law. Furthermore, Rule 70218

of the Federal Rules

of Evidence requires the trial judge to ensure that any and all scientific, technical or other specialized

knowledge is both reliable and relevant. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151

(1999). Professor Cruz has not been qualified by this Court as an expert. Professor Cruz, as the Dean

of a nationalized university, and presumably a resident of Cuba, has a vested interest in opining in

favor of the Cuban government lest her position at the university or her freedom be jeopardized.19

Additionally, Habanos has failed to make any showing that Cuban law should apply as to the

determination of Habanos’ status as a government agency and/or instrumentality20. See In re Vivendi

with the Cuban government.

18 A witness who is qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact

to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702

19 As such, a Daubert hearing regarding Professor Cruz and her testimony should be held by

the Court Similarly, Habanos has previously offered the declaration of Professor Ivonne Perez

Gutierrez [ECF No. 89-7], such expert testimony (as any other expert testimony such as the

Declaration of Rafael Agramonte Hevia [ECF No. 89-4], or Mirel Garcia Dias [ECF No-3]) that was

or may be offered by Habanos, should be subject to a Daubert review by this Court.

20 Defendant has not demonstrated that Cuban law applied to the analysis of Habanos’status

as an agency and/or instrumentality of the Cuban government, and it may not do so in its reply.

Santana v. Starwood Hotels & Resorts Worldwide, Inc., 18-23613-CIV, 2020 WL 9549511 (S.D.

Fla. Jan. 17, 2020) (a movant cannot raise a new argument or evidence in a reply brief as it deprives

the opposing side of the opportunity to respond). Santana v. Starwood Hotels &Resorts Worldwide,

Inc., 18-23613-CIV, 2019 WL 12275952, at *5 (S.D. Fla. Nov. 20, 2019), report and

12

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Universal, S.A. Sec. Litig., 618 F. Supp. 2d 335, 340 (S.D.N.Y. 2009) (“The court may examine a

wide array of materials to determine foreign law . . . but it is under no obligation to do so if the party

whose burden it is fails to produce sufficient evidence that foreign law applies.”)21.

When a defendant’s affidavit conflicts with the allegations in the complaint, the court must

construe all reasonable inferences in favor of the plaintiff. Madara v. Hall, 916 F.2d 1510, 1514

(11th Cir. 1990). Even if the Court were to consider Professor Cruz’ Declaration, as demonstrated

herein, it does not refute either the fact that Habanos is an agency and/or instrumentality of the

Cuban Government, and it does not refute proper service over Habanos.22 More important, Habanos

does not proffer any facts that would be relevant under United States law as to whether or not

Habanos is Government agent/instrumentality.

IV. HABANOS’ DECLARATIONS ARE INADMISSABLE FOR PURPOSES OF A

MOTION TO DISMISS

Habanos has submitted two declarations in the instant motion, relies on seven declarations

submitted in its prior motion to dismiss [ECF No. 89-1 - 88-7], and relies on two additional

recommendation adopted sub nom. Santana v. Starwood Hotels & Resports Worldwide, Inc.,

18-23613-CIV, 2020 WL 9549511 (S.D. Fla. Jan. 17, 2020)

21

If the Court determines that Cuban law is relevant, it is important to note that “When a

foreign government . . . offers an account in the context of litigation, there may be cause for caution

in evaluating the foreign government's submission” Animal Sci. Products, Inc. v. Hebei Welcome

Pharm. Co. Ltd., 138 S. Ct. 1865, 1873 (2018). 

22 Professor Cruz specifies that she has “been advised by counsel for Corporación Habanos,

S.A. . . . that Plaintiffs in this litigation allege that Habanos, S.A. is a Cuban joint venture

corporation owned fifty percent (50%) by a foreign party and fifty percent (50%) by a Cuban entity.

. . . “ and that she has been “requested by counsel for Habanos, S.A. to provide an expert declaration

on the status under Cuban law of sociedades anónimas that are joint ventures owned fifty percent

(50%) by a foreign party and fifty percent (50%) by a Cuban entity.” Cruz Decl. ¶¶2, 4. Professor

Cruz’s declaration does not foreclose that Habanos is a government agent/instrumentality/organ.

Declarant only opines that under Cuban law a “joint venture” cannot be a government agency

13

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declarations submitted by co-defendants Y&R and BCW in a prior motion to dismiss (Motion at 4

n. 5). On a motion to dismiss for failure to state a claim (Fed. R. Civ. Pro. 12(b)(6)) the Court is

limited to the four corners of the complaint, including attachments, and documents central to

plaintiffs’ claim that are referred to in the complaint. Brooks v. Blue Cross &Blue Shield of Florida,

Inc., 116 F.3d 1364, 1369 (11th Cir. 1997), St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th

Cir. 2002). However, Habanos has conflated its arguments claiming that it seeks dismissal under

Fed, R, Civ, P. 12(b)(1), (2), (3) and (5) as well. 

Defendant cannot assert such jurisdictional attacks under Rule 12(b)(1) because

Defendant's challenges "implicate the merits" of Plaintiff's FLSA claims. Morrison

v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003).

It is well settled in the Eleventh Circuit that when a defendant's jurisdictional

challenges are inextricably intertwined with the merits of a plaintiff's claim, the court

must "find that jurisdiction exists and deal with the objection[s] as [ ] direct attack[s]

on the merits of the plaintiff's case" rather than as a purely jurisdictional attack under

Rule 12(b)(1). Id. (quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256,

1261 (11th Cir. 1997)). The defendant is then "forced to proceed under Rule 12(b)(6)

... or Rule 56 ... both of which place great restrictions on the district court's

discretion[.]" Id. This safeguard works to ensure that "potentially meritorious but

factually contested claims are not prematurely dismissed." Douglas v. United States,

814 F.3d 1268, 1281 (11th Cir. 2016).

Romero v. Fox, 18-CV-21218, 2020 WL 8235916, at *2 (S.D. Fla. Jan. 29, 2020) (Gayles, J). “The

district court generally must convert a motion to dismiss into a motion for summary judgment if it

considers materials outside the complaint.” Day v. Taylor, 400 F.3d 1272, 1275–76 (11th Cir. 2005).

As discovery has not been had as of yet, it would premature to have a motion for summary judgment

under Rule 56. Therefore, the extraneous evidence proffered by Habanos cannot be used in support

of its motion to dismiss for failure to state a claim. Facts that are inapplicable to the issue of subject

matter jurisdiction, personal jurisdiction, venue, and service of process should not be considered.

V. THE COURT HAS PERSONAL JURISDICTION OVER HABANOS

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Once again Habanos overstate the import of use of the factory portion of the RRHSC

Property, and attempt to prove that the factory was not in use at the time the social media accounts

were created. Plaintiffs submit that Defendant’s reliance on the Declaration of Susan Bailey and the

other declarations regarding the use of the factory (all of which are referred to in a section called

“facial challenge) are actual an attempts to introduce extraneous evidence to their motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6) and thus should be discarded. Further, that Ms. Bailey relies on

a “Joined” date that appears on a given webpage, which is hearsay, not dispositive, and may not

reflect all social medial portals that were used by the defendant.

Notwithstanding and contrary to Habanos’ claim, the “temporal sequence” between the

factory use and the social media portals is irrelevant to Plaintiff’s jurisdictional claim . Defendant’s

submissions do not preclude that the cigars manufactured in the factory (at any date) were not

promoted by Habanos to Habanos’ benefit, or that portions of the factory were used for storage and

shipping. An internet search easily uncovered a market for “vintage” cigars over ten years old, and

in some cases over 20 years old, being offered for sale.23 Furthermore, the factory portion of the

RRHSC Property is only one part of the property. It is remains uncontested that the tobacco

comprising the products marketed byHabanos was/is managed/trafficked from the RRHSC Property

and that Habanos benefits by marketing the products made from that tobacco.

VI. HABANOS HAS PURPOSELY AVAILED ITSELF OF THE FORUM BY

CONDUCTING ACTIVITIES IN THE UNITED STATED AND FLORIDA

The U.S. Supreme Court’s recent decision in Ford Motor Co. v. Montana Eighth Judicial

23

https://egmcigars.com/collections/vintage-cigars/products/vintage-romeo-y-julieta-exhibicion-no

-4-cigar-asb-ene-06 

https://www.cigarsofhabanos.com/cigars-vintage

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Dist. Court, 141 S. Ct. 1017 (2021), discussed the Constitutional standards at length. Discussing

“specific jurisdiction” the Court explained:

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, Habanos’ conduct is

particularly apt for the exercise of personal jurisdiction, by its “own choice” and not through any

“random, isolated, or fortuitous” act. Habanos plainly and “deliberately ‘reached out beyond’ its

home.” 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 (including violations of CARC). 

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

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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:

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).

This discussion applies directly to Habanos’ conduct. Plaintiffs argue that jurisdiction in this

forum is appropriate because of Habanos’ deliberate conduct in reaching out to and contracting with

U.S. companies and avail themselves of U.S. internet services to in order to further “trafficking” of

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

the Court can apply in order to save Habanos from its illegal and deliberate conduct.

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

Plaintiffs’ Opposition to the Joint Motion, Congress expresslyfound thatthe Cuban Government had

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

as refugees and became U.S. Nationals, which 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 were/are

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

plainly an appropriate forum.

VII. LONG ARM JURISDICTION EXISTS

As discussed infra, Plaintiffs’ HBA claims are in the nature of an intentional tort, and treated

as such for analyzing jurisdiction. Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1353

(11th Cir. 2013). Jurisdiction is proper under the Florida’s long arm statute and Fed. R. Civ. Pro.

4(k) where as here the claim arises under federal law and the defendant is not otherwise subject to

jurisdiction in any individual state.

A. JURISDICTION UNDER FLORIDA’S LONG ARM STAUTE

This Court has personal jurisdiction over each Defendant pursuant to the Florida

“long-arm” statute, Section 48.193(1)(a), Florida Statutes, because each Defendant committed a

tortious act within this state.

[A] defendant's physical presence is not necessaryto commit a tortious act in Florida.

Rather, committing a tortious act in Florida ... can occur through the nonresident

defendant's telephonic, electronic, or written communications into Florida. . . . .

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However, the cause of action must arise from the communications. Further, [u]nder

Florida law, a nonresident defendant commits a tortious act within Florida when he

commits an act outside the state that caused injury within Florida. 

JCS Indus. LLC v. DesignStein LLC, 619CV544ORL37EJK, 2019 WL 5391192, at *2 (M.D. Fla.

Oct. 22, 2019) (internal quotation marks and citations omitted). 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.

Habanos has trafficked in the RRHSC Property, an intentional tort, that caused injuryto the Plaintiffs

within Florida. Jurisdiction is proper under Florida’s Long Arm statute.

B. JURISDICTION UNDER THE NATIONAL LONG ARM STATUTE

In the event that the Court finds that it lacks jurisdiction under Florida’s long arm statute,

jurisdiction under Fed. R. Civ. P. 4(k)(2), the “National Long-Arm Statue” is appropriate. For a

claim that arises under federal law, serving a summons . . . establishes personal jurisdiction over a

defendant if: (A) the defendant is not subject to jurisdiction in any state's courts of general

jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and

laws.” Fed. R. Civ. P. 4. However, defendant bears the burden to show that Fed. R. Civ. P. 4(k)(2)

is inapplicable. “If the defendant contends that he cannot be sued in the forum state and refuses to

identify any other where suit is possible, then the federal court is entitled to use Rule 4(k)(2).” Merial

Ltd. v. Cipla Ltd., 681 F.3d 1283, 1294 (Fed. Cir. 2012). “[T]he burden is on the Defendant to

identify another forum state in which the suit could proceed.” Saint-Gobain Tech. Fabrics Am., Inc.

v. CheckmateGeosynthetics,Inc., 609CV557ORL35KRS, 2010 WL11507686, at *5 (M.D. Fla. Feb.

5, 2010).

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Habanos has not identified any jurisdiction that it is willing to admit that it is unequivocally

subject to its jurisdiction. Only that it “may allow” jurisdiction in New York, such a statement does

not meet defendants burden and thus Rule 4(k)(2) is applicable.

Further as discussed at length infra, due process requirements have been met:

[T]he constitutional litmus test for personal jurisdiction is whether the defendant

“purposefully established ‘minimum contacts' in the forum’ ” Burger King, 471 U.S.

at 473–74, 105 S.Ct. 2174 (quoting International Shoe, 326 U.S. at 316, 66 S.Ct.

154). Jurisdiction may be constitutionally asserted over the nonresident defendant

whenever he has by his own purposeful conduct created a “substantial connection”

with the forum state. Id. at 475, 105 S.Ct. 2174. The Court has made clear, however,

that “[s]o long as it creates a ‘substantial connection’ with the forum, even a single

act can support jurisdiction.” Id. (quoting McGee v. Int'l Life Ins. Co., 355 U.S. 220,

223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)). Intentional torts are such acts, and may

support the exercise of personal jurisdiction over the nonresident defendant who has

no other contacts with the forum.

Licciardello v. Lovelady, 544 F.3d 1280, 1285 (11th Cir. 2008). Furthermore, personal jurisdiction

under Rule 4(k)(2) is not governed under the Fourteenth Amendment, but under the Fifth

Amendment, which considers contacts with the entire United States. Douglass v. Nippon Yusen

Kabushiki Kiasha, 996 F.3d 289, 293-294 (5th

 Cir. 2021).

Habanos has purposely availed itself of the United States and thus has submitted to the

jurisdiction of United States District Courts24. Habanos has repeatedly used the laws and courts of

the United States to protect its trademarks for its tobacco products (which includes those products

which were trafficked through the RRHSC Property), at the expense of United States citizens who

wish to use such marks. Habanos has used United States companies and social media portals to

traffic goods contrary inviolation of the HBA. Habanos admited to advertising its trafficked goods

24

 “Rule 4(k)(2) permits a court to aggregate a foreign defendant's nationwide.” 

Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000)

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“world wide” and in at least one instance admitted that “worldwide” included the United States.

Habanos has sufficient contacts with the United States to sustain National Long-Arm Jurisidiction.

VIII. TITLE III OF THE HBA COMPORTS WITH DUE PROCESS

Habanos argues that the Title III of the HBA is unconstitutional due to due process concerns,

and in support thereof cites two cases, neither of which support Habanos’ position. First, Habanos

cites to Gerling Glob. Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228, 1236 (11th Cir. 2001).

However, the Court in Gerling scrutinized a State statute (to wit, Florida's Holocaust Victims

Insurance Act) reviewed its constitutionality under the Fourteenth Amendment. In the instant case,

at issues is the HBA, a federal statute, and the matter is is pending before the Federal District Court

of the United States, a soverign separate from the states and thus subject to a review under the Fifth

Amendement and not the Fourteenth. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884 (2011)

(“[f]or jurisdiction, a litigant may have the requisite relationship with the United States Government

but not with the government of any individual State.”).

Habanos also cites to U.S. v. Baston25

. In Baston the Court found that 18 U.S.C. §1596, a

statute that grants the extra-territorial jurisdiction over sex trafficking even when such trafficking

did not occur within the United States to be constitutional and did not violate the due process clause.

Specificially, the Court noted that Congress was authorized to enact extraterritorial laws under the

Foreign Commerce Clause (and other provisions including the Offences Clause) and that “this Court

has repeatedlyupheld its power to make laws applicable to persons or activities beyond our territorial

boundaries where United States interests are affected.” United States v. Baston, 818 F.3d 651, 667

(11th Cir. 2016) quoting Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813–14, 113 S.Ct. 2891,

25

 818 F.3d 651 (11th Cir. 2016).

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125 L.Ed.2d 612 (1993) (Scalia, J., dissenting).26

In fact, Congress may confer extraterritorial jurisdiction in violation of international law if

it so chooses. United States v. Baston, 818 F.3d 651, 669 (11th Cir. 2016) citing Hartford Fire Ins.

Co. v. California, 509 U.S. 764, 813–14, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993) (Scalia, J.,

dissenting). It is also clear that Congress intended the HBA to have extraterritorial reach as the act

directs that alien traffickers are to be denied entry into the Untied States. 22 USC §6091(a). Instead,

“due process requires only that an exercise of extraterritorial jurisdiction not be arbitrary or

fundamentally unfair, a question of domestic law.” United States v. Baston, 818 F.3d 651, 669 (11th

Cir. 2016) (emphasis added). Due process is satisfied when there is some minimal contact between

the state (or in this case, the country) and the regulated subject. Id. 

At issue here is Habanos’ trafficking by promoting and marketing (in the United States) and

benefitting from the tobacco products that consist of the same tobacco that was managed from the

RRHSC Property. That Habanos, the “regulated party”, is not a U.S. national and has not US office

is of no issue. Habanos has availaed itself of the laws and services of the Unites States and Due

Process is satisfied.27

26

“[T]he Foreign Commerce Clause provides Congress a broad power . . . [t]he Supreme

Court has described . . . as . . . ‘plenary,’ . . . and ‘broad,” . . . . United States v. Baston, 818 F.3d

651, 667–68 (11th Cir. 2016) (citing to Bd. of Trustees of Univ. of Ill. v. United States, 289 U.S. 48,

56, 53 S.Ct. 509, 77 L.Ed. 1025 (1933), and United States v. Forty–Three Gallons of Whiskey, 93

U.S. 188, 194, 23 L.Ed. 846 (1876)).

27 Not only has Habanos “reached out” to use United States companies to assist in trafficking

the RRHSC Property, but Habanos has consistently availaed itself of the protection of Untied States

laws, asserting trademarks over its tabacco productions and preventing others from using such

names. As per Habanos’ own admissions, Habanos is the owner of more than a dozen United States

registered trademarks, including but not limited to HABANOS UNICOS DESDE 1492, U.S. Reg.

No. 2,177,837, SPECIALIST HABANOS, U.S. Reg. No. 4244340. Habanos admits to using the two

aformentioned trademarks “throughout the world exclusively for cigars that are of 100% Cuban

origin . . .” Corporacion Habanos, S.A. v. Havana Cigar Lounge, LLC, Opp. No. 91236503 (TTAB

22

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IX. SERVICE VIA DHL WAS SUFFICIENT

Habanos claims that service via DHL does not constitute mail under Fed. R. Civ. Pro.

4(f)(2)(C)(ii)28. Service in the instant actions was duly performed in accordance with 28 U.S.C.

§1608(b)(3)(B)

29

([ECF No. 66]) as required by the HBA (22 U.S.C. §6082(c)(2)), in which the clerk

of this court dispatched the summons and complaint with D.H.L.. This Court, as others, have

accepted service through D.H.L. suffices as “mail”. Hurtado v. Balerno Int'l Ltd., 17-62200-CIV,

2018 WL 4053122, at *2 (S.D. Fla. Aug. 24, 2018) (“ in accord with 28 U.S.C. § 1608(b)(3)(B) and

Federal Rule of Civil Procedure 4, the Clerk of Court filed a Notice of International Service

certifying that a copy of Plaintiff's summons and complaint had been mailed to Defendant . . .

Defendant was served by D.H.L., return receipt requested, pursuant to Rule 4(f)(2)(C)(ii).”),

TracFone Wireless, Inc. v. SCS Supply Chain LLC, 330 F.R.D. 613, 616 (S.D. Fla. 2019) (“FedEx

or UPS service appropriatelysafeguards notice requirements in construing the Federal Rules of Civil

2017), D.E. 1 (https://ttabvue.uspto.gov/ttabvue/v?pno=91236503&pty=OPP&eno=1).

28 Neither of the cases cited by Defendant to support the definition of “mail” use it in the

context of the FSIA.

29 Service can be made by “delivery of a copy of the summons and complaint, together with

a translation of each into the official language of the foreign state . . . (B) by any form of mail

requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the agency or

instrumentality to be served . . .”

As pointed out by Defendant, 28 U.S.C. §1608(b)(3) has many similarities to the language

used in Rule 4. However the two provisions are not identical, for example, Rule 4(f)(2) only allows

service bymail “unless prohibited by the foreign country’s law” while FSIA (b)(3)(B) allows service

by mail notwithstanding the laws of the country where service occurs.

As evident by it reference to the same, Rule 4(f) was drafted to comply with the Hauge

Convention on the Service Abroad of Judicial and Extra Judicial Documents. Although Cuba is not

a party to the said convention, it is worth noting that the 2003 Special Commission on the Practical

Operation of the Hague Apostille, Evidence and Service Conventions found that use of a private

courier was the equivalent of the postal channel.

https://assets.hcch.net/docs/0edbc4f7-675b-4b7b-8e1c-2c1998655a3e.pdf . 

23

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Procedure”)

However, in the unlikely even that the Court finds process was insufficient or that service

should have been performed pursuant to Rule 4(f), Courts have found that “invalidity of the one

attempt at service does not automatically require dismissal of the complaint.” Grammenos v. Lemos,

457 F.2d 1067, 1071 (2d Cir. 1972). Therefore, Defendant’s request to dismiss the SAC should be

denied.

X. DISMISSAL WITH PREJUDICE IS IMPROPER

Habanos has requested that the SAC be dismissed with prejudice, but failed to state any

reason or cite to any case as to why there should be any prejudice. Furthermore, “[t]he dismissal of

a case without prejudice is tantamount to a dismissal with prejudice if it has the effect of precluding

a plaintiff from re-filing his claim due to the running of the limitation period.” Rickerson v. Sec'y,

Florida Dep't of Corr., 21-12110-F, 2021 WL 6098415, at *1 (11th Cir. Nov. 2, 2021)

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 for lack of jurisdiction, or subject matter jurisdiction or standing are not a judgment on

the merits and are entered without prejudice. Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys.,

Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). Dismissal for improper venue is without prejudice. Fed

R. Civ. P. 41(b). Dismissal for improper service of process is jurisdictional in nature, not on the

merits and should not be dismissedwith prejudice. Jackson v. Warden, FCC Coleman-USP, 259 Fed.

App’x. 181, 183 (11th Cir. 2007), Abram v. Fulton Cty. Gov't, 482 F. App'x 421, 425 (11th Cir.

2012). It is only a dismissal pursuant to Rule 12(b)(6), failure to state a claim, that can be dismissed

with prejudice if it is a determination on the merits. addresses the merits , and then in only in certain

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circumstance. Beach Blitz Co. v. City of Miami Beach, Florida, 13 F.4th 1289, 1300 (11th Cir. 2021)

(dismissal pursuant to Fed. R. Civ. P. 12(b)(6) may be “without prejudice” and is inconclusive if it

is or isn’t claim preclusive). Were the Court to determine that jurisdiction is lacking, or venue is

improper, and that such defect requires dismissal (as opposed to transfer or leave to amend), then

the dismissal must be without prejudice. 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”).

CONCLUSION

For all the reasons set forth herein, Plaintiffs respectfully request that the Court deny

Defendant Habanos’ Motion to Dismiss in its entirety, and/or for such other and further relief as the

Court may deem just and appropriate.

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

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