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' OBJECTIONS TO THE SUPPLEMENTAL REPORT AND

RECOMMENDATION ON DEFENDANTS IMPERIAL BRANDS PLC AND 

WPP PLC’S MOTIONS TO DISMISS THE SECOND AMENDED COMPLAINT

EXHIBIT A

Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 1 of 27
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. 

______________________________________/ 

SUPPLEMENTAL REPORT AND RECOMMENDATION

THIS CAUSE came before the undersigned upon the Court’s Order on Report and 

Recommendation [D.E. 307], which the undersigned had issued on November 2, 2022, with 

respect to the following submissions: 

 Defendant Corporación Habanos, S.A.’s (“Habanos”) Motion to Dismiss the 

Second Amended Complaint (hereafter, “Habanos’ Motion to Dismiss”) [D.E. 

225]; 

 Defendant Imperial Brands plc’s (“Imperial”) Motion to Dismiss the Second 

Amended Complaint (hereafter, “Imperial’s Motion to Dismiss”) [D.E. 226]; 

 Defendants WPP plc (“WPP”), Young & Rubicam LLC (“Y&R”), and BCW LLC 

(“BCW”) (WPP, Y&R, and BCW, together, “WPP Defendants”)’s Motion to 

Dismiss the Second Amended Complaint (hereafter, “WPP Defendants’ Motion to 

Dismiss”) [D.E. 229]; and 

 Imperial, Habanos, and WPP Defendants’ Motion to Dismiss the Second Amended 

Complaint (hereafter, “Joint Motion to Dismiss”) [D.E. 227]. 

See Report and Recommendation [D.E. 286]. Therein, the undersigned recommended that 

Habanos’ Motion to Dismiss be granted for improper venue pursuant to Federal Rule of Civil 

Procedure 12(b)(3); that this action be dismissed without prejudice to Plaintiffs Luis Manuel 

Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 2 of 27 Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 1 of 26
2 

Rodriguez, Maria Teresa Rodriguez, Alfredo Ramon Forns, Ramon Alberto Rodriguez, Raul 

Lorenzo Rodriguez, Christina Conroy, and Francisco Ramon Rodriguez (together, “Plaintiffs”)

refiling their action in a proper venue; and that Imperial’s Motion to Dismiss, WPP Defendants’ 

Motion to Dismiss, and the Joint Motion to Dismiss be denied without prejudice as moot. Id. 

On March 31, 2023, the Court affirmed and adopted in part the Report and 

Recommendation and granted Habanos’ Motion to Dismiss. See Order on Report and 

Recommendation [D.E. 307 at 5]. However, the Court remanded the case to the undersigned “for 

further proceedings and a report and recommendation as to whether Defendant Imperial and the 

WPP Defendants waived the defense of improper venue”; and to “address other issues if 

warranted.” Id. at 5–6. Based on this directive, the undersigned permitted Imperial and the WPP 

Defendants (together, “Defendants”) to brief the issue of whether they had waived the defense of 

improper venue, as well as proffer any arguments for dismissal that they wished to assert. See

Order [D.E. 316]. 

On May 19, 2023, in compliance with the undersigned’s instructions: the WPP Defendants

filed a Post-Remand Brief in Support of their Motion to Dismiss (hereafter, “WPP Defendants’

Post-Remand Brief”) [D.E. 318]; Imperial filed a Supplemental Brief in Support of its Motion to 

Dismiss (hereafter, “Imperial’s Post-Remand Brief”) [D.E. 319]; and Defendants filed a 

Supplemental Brief in Further Support of the Joint Motion to Dismiss (hereafter, “Joint PostRemand Brief”) [D.E. 320] (collectively, “Defendants’ Post-Remand Briefs”), arguing as follows: 

 Defendants did not waive the defense of improper venue and the undersigned’s 

Report and Recommendation correctly recommended dismissal of the entire action 

without prejudice to refiling in a proper venue; 

 The WPP Defendants’ alleged jurisdictional contacts cannot be imputed to Imperial

and, in any event, the Second Amended Complaint fails to sufficiently allege that 

this Court has personal jurisdiction over the WPP Defendants and Imperial under 

the Florida long-arm statute and Federal Rule of Civil Procedure 4(k)(2) (hereafter, 

Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 3 of 27 Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 2 of 26
3 

“Rule 4(k)(2)”), thereby requiring dismissal pursuant to Federal Rule of Civil 

Procedure 12(b)(2) (hereafter, “Rule 12(b)(2)”); and

 The Second Amended Complaint fails to state a claim under Title III of the HelmsBurton Act, 22 U.S.C. §§ 6081–6085 (hereafter, “Title III”), thereby requiring 

dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) (hereafter, “Rule 

12(b)(6)”). 

See Defendants’ Post-Remand Briefs [D.E. 318–20].1

 

On July 22, 2023, Plaintiffs filed their Responses to Defendants’ Post-Remand Briefs 

(hereafter, “Post-Remand Response Briefs”) [D.E. 328–30]. On August 11, 2023, Imperial filed 

its Supplemental Reply Brief (hereafter, “Imperial’s Reply Brief”) [D.E. 333]; Defendants filed 

their Supplemental Reply Brief (hereafter, “Joint Reply Brief”) [D.E. 334]; and the WPP 

Defendants filed their Reply in Support of their Post-Remand Brief (hereafter, “WPP Defendants’ 

Reply Brief”) [D.E. 335] (together, “Post-Remand Reply Briefs”). On September 28, 2023, the 

undersigned held a Post-Remand Hearing [D.E. 340]. On October 18, 2023, Plaintiffs filed a 

Notice of Supplemental Authority [D.E. 342]; and on October 23, 2023, Defendants responded to 

Plaintiffs’ Notice of Supplemental Authority [D.E. 343–44]. 

As more fully discussed below, the undersigned concludes that Defendants did waive the 

defense of improper venue. Moreover, upon consideration of the Post-Remand Briefs, PostRemand Response Briefs, and Post-Remand Reply Briefs, as well as the parties’ arguments at the 

Post-Remand Hearing, the undersigned: vacates her prior recommendations that this action be 

dismissed without prejudice to Plaintiffs refiling their action in a proper venue and that Imperial’s 

Motion to Dismiss, WPP Defendants’ Motion to Dismiss, and the Joint Motion to Dismiss be 

denied without prejudice as moot; and respectfully recommends that Imperial’s Motion to Dismiss

1 The undersigned continues to hold in abeyance and does not discuss herein the argument challenging the 

constitutionality of Title III set forth in Imperial’s Motion to Dismiss. See Imperial’s Motion to Dismiss

[D.E. 226]; Supplemental Statement of Interest [D.E. 271]; Paperless Order [D.E. 272]. 

Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 4 of 27 Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 3 of 26
4 

be GRANTED IN PART for lack of personal jurisdiction, WPP Defendants’ Motion to Dismiss

be GRANTED IN PART for lack of personal jurisdiction, and the Joint Motion to Dismiss be 

GRANTED IN PART for failure to state a claim. 

SUMMARY OF DEFENDANTS’ ARGUMENTS ON REMAND

 As noted above, Defendants initially argue that they did not waive the defense of improper 

venue and that the Report and Recommendation correctly recommended dismissal of the entire 

action without prejudice to refiling in a proper venue. The undersigned finds this contention to be 

erroneous. Defendants further argue that the Second Amended Complaint should be dismissed for 

lack of personal jurisdiction and failure to state a Title III claim. The undersigned finds merit in 

some of these arguments. 

WAIVER OF DEFENSE OF IMPROPER VENUE

In its Motion to Dismiss the Second Amended Complaint, Habanos argued that venue as 

to Habanos was improper in this district under 28 U.S.C. § 1391(f). See Habanos’ Motion to 

Dismiss [D.E. 225 at 14]. Habanos explained that 28 U.S.C. § 1391(f) governed venue as to 

Habanos because Plaintiffs had alleged that Habanos was an “agency or instrumentality of the 

Cuban government” under the Foreign Sovereign Immunities Act (“FSIA”) and that 28 U.S.C. § 

1391(f) “controls venue in every case where a foreign state is named as a defendant.” Id. (internal 

quotation marks and citations omitted). Habanos further argued that Plaintiffs had failed to allege 

that “a substantial part of the events or omissions giving rise to the claim occurred” in this district

as required by 28 U.S.C. § 1391(f)(1) (hereafter, “Section 1391(f)(1)”). Id. at 14–18. 

Alternatively, Habanos argued that, if it was not deemed an agency or instrumentality of Cuba and 

the FSIA did not apply, venue was likewise improper under the similar standard set forth in 28 

U.S.C. § 1391(b)(2) (hereafter, “Section 1391(b)(2)”), pursuant to which Plaintiffs had alleged

Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 5 of 27 Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 4 of 26
5 

that venue in this district was proper as to all the defendants. Id. 

In the prior Report and Recommendation, the undersigned found that “the allegations in 

the Second Amended Complaint ‘reveal[] that no events giving rise to the claim[] occurred in this 

District and, as a consequence, venue does not properly lie’ here under Section 1391(f)(1) or 

Section 1391(b)(2).” See Report and Recommendation [D.E. 286 at 9] (alterations in original) 

(citations omitted). The undersigned also found that: 

Although the other [d]efendants did not move to dismiss for improper venue, 

Habanos’ venue argument is dispositive as to all [the defendants] . . . . See, e.g., 

Habanos’ Motion to Dismiss [D.E. 225 at 15–18] (discussing impropriety of venue 

in the Southern District of Florida as to all [d]efendants). The parties also had an 

opportunity at the [hearing on the Motions to Dismiss, see Paperless Minute Entry 

[D.E. 273],] to present their arguments about venue in this district and their 

respective positions on transferring or dismissing the case. See, e.g., Corrected 

Hearing Tr. [D.E. 285 at 10:25–17:21, 49:7–50:16, 92:5–93:8, 110:11–19, 144:4–

146:20]. Thus, the Court may also consider dismissal of this case sua sponte for 

lack of venue as to the non-moving [d]efendants. See Algodonera De Las Cabezas, 

S.A. v. Am. Suisse Cap., Inc., 432 F.3d 1343, 1345 (11th Cir. 2005) (“[W]hile a 

district court may dismiss a suit sua sponte for lack of venue, it may not do so 

‘without first giving the parties an opportunity to present their views on the issue.’”) 

(quoting Lipofsky v. N.Y. State Workers Comp. Bd., 861 F.2d 1257, 1259 (11th 

Cir. 1988)). 

Id. at 6 n.3. Ultimately, the undersigned declined to recommend a transfer of the action to “another 

district where venue in that district is not affirmatively established in the [Second Amended] 

Complaint.” Id. at 10 (alteration in original) (internal quotation marks and citation omitted). 

Therefore, the undersigned recommended that the entire action be dismissed without prejudice to 

Plaintiffs refiling the case in a proper venue. Id. at 11. 

In its Order on Report and Recommendation [D.E. 307], the Court adopted the 

undersigned’s finding that venue was improper as to Habanos and granted Habanos’ Motion to 

Dismiss [D.E. 225]. See Order on Report and Recommendation [D.E. 307 at 5]. However, the 

Court noted that the Report and Recommendation “[did] not specifically address whether Imperial 

Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 6 of 27 Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 5 of 26
6 

and the WPP Defendants waived the improper venue issue by failing to raise it in their initial 

motions to dismiss.” Id. The Court further noted that, although it “may consider dismissal of this 

case sua sponte for lack of venue as to [Imperial and] the WPP Defendants as long as the parties 

are given an opportunity to present their views on the issue . . . the Eleventh Circuit Court of 

Appeals [has] held that a district court may dismiss a suit sua sponte for lack of venue only ‘in the 

absence of a waiver.’” Id. (citing Algodonera, 432 F.3d at 1345; Lipofsky, 861 F.2d at 1259). As 

a result, the Court remanded the matter to the undersigned for “an opportunity to consider whether 

Imperial and the WPP Defendants have waived the improper venue issue.” Id. 

In their Joint Post-Remand Brief, Defendants contend that the Report and 

Recommendation correctly recommended dismissal of the entire action for improper venue 

because “the Court did not raise venue sua sponte, the parties presented their views on the issue, 

and the venue defense was not waived.” See Joint Post-Remand Brief [D.E. 320 at 8–9]. At the 

Post-Remand Hearing, Imperial argued that “the [C]ourt did not raise venue sua sponte[,] Habanos 

did[,] [a]nd the parties had the opportunity to advocate their positions”, stating: 

[Defendants] opposed transfer and advocated for dismissal. . . . Of course, the 

[P]laintiffs too had the opportunity to argue what disposition should flow from 

success on Habanos’ unique [FSIA] venue argument. They asked, of course, that 

the case remain in Florida, but their request was that if that didn’t work, then the 

entire case be transferred somewhere else. So a unitary disposition is what the 

[P]laintiffs requested. . . . What the Eleventh Circuit [has] said is [that] . . . you have 

to allow the parties time to advocate. Perhaps the defendant wants to accept venue 

in an improper venue; perhaps the plaintiff wants to argue about why venue was 

improper. That was all permitted here. So we are not even within the scope and 

coverage of this waiver rule that [Plaintiffs] are invoking. 

See Post-Remand Hearing Tr. [D.E. 341 at 11:14–12:15].2

 Defendants also argue that they “could 

2 With regard to the unitary disposition argument, Imperial further contends that, although Plaintiffs had 

alluded to a possible severance of Habanos should the Court find that venue as to Habanos was improper 

in this district, see Response to Habanos’ Motion to Dismiss [D.E. 263 at 6], Plaintiffs’ Amended 

Objections to Report and Recommendation [D.E. 294 at 4], Plaintiffs never formally moved the Court for 

Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 7 of 27 Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 6 of 26
7 

not have asserted the Habanos-specific FSIA venue defense” and, as such, could not “have waived 

a defense that was never theirs to assert.” See Joint Post-Remand Brief [D.E. 320 at 11]; Joint 

Reply Brief [D.E. 334 at 6]; see also Post-Remand Hearing Tr. [D.E. 341 at 14:14–18] (“Imperial 

and [the WPP Defendants] did not have [an FSIA] venue defense to make; therefore, they had no 

such defense; therefore, they cannot possibly have waived it because they couldn’t have made it 

in the first place.”). 

Plaintiffs countered at the Post-Remand Hearing that discussing the matter of venue sua 

sponte at a hearing does not provide sufficient notice to the parties. See Post-Remand Hearing Tr. 

[D.E. 341 at 20:14–22] (referencing McIntosh v. Royal Caribbean Cruises, Ltd., 5 F.4th 1309, 

1312 (11th Cir. 2021)) (“Of course, before acting on its own initiative, a court must accord the 

parties fair notice and an opportunity to present their positions.”) (quoting Day v. McDonough, 

547 U.S. 198, 210 (2006)). More importantly, Plaintiffs correctly argue that “[f]ailure to raise the 

issue of improper venue in an initial motion to dismiss waives such defense.” See Post-Remand 

Response Brief [D.E. 330 at 1] (citing Aero Techs., LLC v. Lockton Cos. Intern. Ltd., 406 F. 

App’x 440, 441 (11th Cir. 2010)) (“Federal Rule of Civil Procedure 12(h)(1) states that some Rule 

12 defenses are waived by failing to raise them in the initial Rule 12 motion, including improper 

venue[.]”). Plaintiffs note that Defendants did not raise the defense of improper venue in their 

respective Motions to Dismiss the Second Amended Complaint or in their earlier motions to 

dismiss the Complaint [D.E. 1] and First Amended Complaint [D.E. 82]. See Post-Remand 

Response Brief [D.E. 330 at 1] (referencing the prior Motions to Dismiss [D.E. 71–72, 74, 88, 91, 

94]). Indeed, Defendants limited their initial dismissal arguments to, in relevant part, lack of 

a severance pursuant to Federal Rule of Civil Procedure 21. See Joint Post-Remand Brief [D.E. 320 at 10]. 

However, the undersigned need not consider the issue of severance at this juncture, given that the Court has 

already dismissed Habanos for improper venue, see Order on Report and Recommendation [D.E. 307 at 5], 

and the undersigned is recommending dismissal of Defendants. 

Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 8 of 27 Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 7 of 26
8 

personal jurisdiction, lack of standing, and failure to state a claim. See Motions to Dismiss the 

Complaint [D.E. 71–72, 74].3 Thus, Plaintiffs posit that “only Habanos was dismissed for lack of 

venue, and the remaining defendants do not get dismissed for lack of venue because they did not 

plead it” and, therefore, waived the defense. See Post-Remand Hearing Tr. [D.E. 341 at 24:24–

25:2]. 

Given that Defendants did not assert the defense that venue in this district was improper in 

their initial, much less any of their Motions to Dismiss, the undersigned concludes that Defendants

did waive the defense of improper venue. See Aero Techs., 406 F. App’x at 441 (“Our circuit has 

never recognized extraordinary circumstances as grounds for overlooking a defendant’s waiver of 

venue and we decline to do so here.”). In light of that waiver, dismissal of the action with respect 

to Defendants was improper. See Order on Report and Recommendation [D.E. 307 at 5]. 

Therefore, the undersigned vacates her prior recommendations that this action be dismissed 

without prejudice to Plaintiffs refiling their action in a proper venue; and that Imperial’s Motion 

to Dismiss, WPP Defendants’ Motion to Dismiss, and the Joint Motion to Dismiss be denied 

without prejudice as moot. 

In accordance with the Court’s directive to “address other issues if warranted”, id. at 6, the 

undersigned proceeds to consider Defendants’ arguments regarding lack of personal jurisdiction 

and failure to state a claim. 

PERSONAL JURISDICTION

 The WPP Defendants argue that this Court cannot exercise personal jurisdiction over them 

under Florida’s long-arm statute or Rule 4(k)(2). See WPP Defendants’ Post-Remand Brief [D.E. 

318 at 7–13]. Moreover, Imperial argues that “Plaintiffs have pleaded no basis to impute [] the 

3 In contrast, Habanos raised its improper venue defense in its initial motion to dismiss the First Amended 

Complaint [D.E. 89] as well as in its Motion to Dismiss the Second Amended Complaint [D.E. 225]. 

Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 9 of 27 Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 8 of 26
9 

WPP Defendants’ alleged jurisdictional contacts to Imperial.” See Imperial’s Post-Remand Brief 

[D.E. 319 at 7–8]. Imperial further argues that, even if the WPP Defendants’ alleged jurisdictional 

contacts are imputed to Imperial, they are likewise insufficient under the Florida long-arm statute 

and Rule 4(k)(2); and that it would be constitutionally unreasonable to exercise personal 

jurisdiction over Imperial. Id. at 9–14. 

At the Post-Remand Hearing, Plaintiffs abandoned their theory of specific personal 

jurisdiction under the Florida long-arm statute as to all Defendants. See Post-Remand Hearing Tr. 

[D.E. 341 at 6:11–14, 156:4–6]. Plaintiffs also abandoned their argument that Y&R and BCW are 

subject to personal jurisdiction under Rule 4(k)(2). Id. at 158:3–5. Therefore, the undersigned 

limits the current jurisdictional analysis to whether the Second Amended Complaint sufficiently 

alleges personal jurisdiction over WPP and Imperial pursuant to Rule 4(k)(2). 

1. Applicable law

For a claim arising under federal law, a party may seek to establish personal jurisdiction 

pursuant to Rule 4(k)(2) if “the defendant is not subject to jurisdiction in any state’s courts of 

general jurisdiction” and “exercising jurisdiction is consistent with the United States Constitution 

and laws.” See Fed. R. Civ. P. 4(k)(2)(A)–(B). “[W]hen, as here, a federal statute provides the 

basis for jurisdiction, the constitutional limits of due process derive from the Fifth, rather than the 

Fourteenth, Amendment.” S.E.C. v. Marin, 982 F.3d 1341, 1349 (11th Cir. 2020) (internal 

quotation marks omitted) (quoting Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 

119 F.3d 935, 942 (11th Cir. 1997)). “[T]he personal-jurisdiction analysis under the Fifth 

Amendment is the same as that under the Fourteenth”, except the applicable forum is the United 

States. Herederos De Roberto Gomez Cabrera, LLC v. Teck Res. Ltd., 43 F.4th 1303, 1308 (11th 

Cir. 2022) (evaluating personal jurisdiction under Rule 4(k)(2) in Helms-Burton Act case). As 

Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 10 of Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 9 of 26

27
10 

such, “[t]he exercise of personal jurisdiction comports with due process when (1) the nonresident 

defendant has purposefully established minimum contacts with the [United States] and (2) the 

exercise of jurisdiction will not offend traditional notions of fair play and substantial justice.” 

Marin, 982 F.3d at 1349 (internal quotation marks omitted) (quoting U.S. S.E.C. v. Carrillo, 115 

F.3d 1540, 1542 (11th Cir. 1997)). 

To establish sufficient minimum contacts with the United States, the defendant’s contacts 

must satisfy three criteria:

First, the contacts must be related to the plaintiff’s cause of action or have given 

rise to it. Second, the contacts must involve some act by which the defendant 

purposefully avails itself of the privilege of conducting activities within the forum 

. . . , thus invoking the benefits and protections of its laws. Third, the defendant’s 

contacts with the forum must be such that [the defendant] should reasonably 

anticipate being haled into court there. 

See Carrillo, 115 F.3d at 1542 (citing Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1546 

(11th Cir. 1993)). Moreover, where the defendant is alleged to have committed an intentional tort 

specifically aimed at a plaintiff who was injured in the forum, due process may also be satisfied 

under the “effects test” established by the Supreme Court in Calder v. Jones, 465 U.S. 783, 789–

90 (1984), which provides that jurisdiction over a defendant is proper when the “effects” of its outof-state conduct—in this case, the intentional tort of trafficking—are felt in the forum. See, e.g., 

Garcia v. Gravity Interactive, Inc., No. 10-62162-Civ, 2012 WL 13005342, at *6–*7 (S.D. Fla. 

Jan. 17, 2012) (applying Calder “effects” test to assess Rule 4(k)(2) jurisdiction). 

2. Rule 4(k)(2) personal jurisdiction over Defendants 

As to the initial requirement for triggering the application of Rule 4(k)(2), WPP argues that 

the “[Second Amended Complaint] itself defeats Rule 4(k)(2) jurisdiction by pleading that ‘WPP 

. . . maintains a principal place of business in New York.’” See WPP Defendants’ Post-Remand 

Brief [D.E. 318 at 13] (emphasis in original) (quoting Sec. Am. Compl. [D.E. 208 ¶ 36]). However, 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 10 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 11 of

27
11 

notwithstanding Plaintiffs’ allegation in the Second Amended Complaint, WPP contends that it is 

not subject to general jurisdiction in New York. See Post-Remand Hearing Tr. [D.E. 341 at 

167:11–12] (“So WPP, we are not conceding general jurisdiction in New York.”). Indeed, WPP 

has consistently taken issue with Plaintiffs’ allegation that it maintains a principal place of business 

in New York. See WPP Defendants’ Motion to Dismiss [D.E. 229 at 20 n.8] (“[The] WPP 

Defendants do not agree with this assertion[.]”); see also Joint Motion to Dismiss [D.E. 227 at 13] 

(“WPP [is] a company incorporated in the Bailiwick of Jersey and with its principal place of

business in London[.]”). Moreover, the parties concede that WPP and Imperial are not subject to 

general jurisdiction in Florida. See WPP Defendants’ Reply in Support of Motion to Dismiss[D.E. 

266 at 6] (“WPP Defendants established that the exercise of general . . . jurisdiction in Florida is 

improper over each of the WPP Defendants—all of which are headquartered and incorporated 

outside of Florida. Plaintiffs fail to respond substantively to much of WPP Defendants’ personal 

jurisdiction argument.”); Imperial’s Post-Remand Brief [D.E. 319 at 5] (“Plaintiffs rightly have 

never argued that Imperial, a foreign-incorporated, foreign-headquartered corporation, is subject 

to general personal jurisdiction in this forum.”). Therefore, given that the parties do not identify a 

state where WPP and Imperial are amenable to general jurisdiction, the first requirement for 

application of Rule 4(k)(2) to Defendants is satisfied. See Fed. R. Civ. P. 4(k)(2)(A) (requiring 

that “the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction”).4 

4 At the Post-Remand Hearing, Plaintiffs indicated that if “WPP [were to] pivot[] and argue[] . . . that [] 

jurisdiction for WPP is appropriate in New York and the court accepts that argument . . . then [Plaintiffs’] 

position would be that [they] would want the matter [as to the WPP Defendants] transferred to New York.” 

See Post-Remand Hearing Tr. [D.E. 341 at 159:6–16]. Plaintiffs limited this proposition to the WPP 

Defendants. Id. at 159:17–20 (“The Court: So then you don’t know what is going to happen to Imperial, 

but you’re not asking that Imperial be transferred. Counsel: Not at this point.”). However, WPP did not 

pivot its argument along the lines described by Plaintiffs’ counsel. Id. at 160:3–4. In any event, a transfer 

of the action as to the WPP Defendants would be difficult to justify in light of the Court’s prior finding that 

venue in the case is improper in New York. See Report and Recommendation [D.E. 286 at 10] (“Plaintiffs’ 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 11 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 12 of

27
12 

As to the second element of the Rule 4(k)(2) analysis, Defendants argue that Plaintiffs fail 

to establish that Defendants have “minimum contacts” with the United States to satisfy specific 

personal jurisdiction under Rule 4(k)(2). See WPP Defendants’ Post-Remand Brief [D.E. 318 at 

12]; Imperial’s Post-Remand Brief [D.E. 319 at 9]; see also Fed. R. Civ. P. 4(k)(2)(B) (requiring 

that “jurisdiction is consistent with the United States Constitution and laws”).

5

 As set forth in the 

prior Report and Recommendation, 

Plaintiffs allege that [the] [d]efendants have trafficked in Plaintiffs’ property, which 

was confiscated by the Cuban government in 1961, and are therefore liable to them 

under [Title III]. See Sec. Am. Compl. [D.E. 208 ¶¶ 3, 19]. Plaintiffs’ property 

consists of a building known as the Partagás factory and a modern mixed-use 

building adjacent and connected to the Partagás factory (collectively, “the 

Property”). Id. ¶¶ 1–2. Specifically, Plaintiffs allege that Imperial, through 

Habanos, other joint-venture entities, and Non-party Tabacuba, has used and 

continues to use the Property without compensation to or authorization from 

Plaintiffs. Id. ¶¶ 17–18. 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. ¶¶ 17–18, 22–23. . . . 

See Report and Recommendation [D.E. 286 at 2–3]. To that end, Plaintiffs claim that “WPP 

through the WPP Group that it controls, including BCW and Y&R[,] used US Services, including 

Internet, email, and other networking and telecom services, the YR.com, BM.com, and 

Ogilvy.com Internet domains, and U.S. social media portals for the [] marketing, advertising, and 

promotion of Cuban tobacco products and the Habanos brand name.” See Post-Remand Response 

Brief [D.E. 328 at 6] (citing Sec. Am. Compl. [D.E. 208 ¶¶ 54–56, 61]). Plaintiffs contend that 

this conduct relates or gives rise to their Title III claim because “[WPP’s] trafficking [] was 

Second Amended Complaint is devoid of allegations affirmatively establishing that venue would be proper 

in New York.”). 5 In a footnote, WPP argues that this Court also lacks general personal jurisdiction over Defendants under 

Rule 4(k)(2). See WPP Defendants’ Post-Remand Brief [D.E. 318 at 12 n.2]. However, Plaintiffs appear 

to have abandoned this theory of personal jurisdiction. See generally Post-Remand Response Brief [D.E. 

328]. Accordingly, the undersigned limits the Rule 4(k)(2) analysis to assessing whether Plaintiffs have 

sufficiently alleged specific personal jurisdiction over Defendants under Rule 4(k)(2). 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 12 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 13 of

27
13 

complete when WPP’s US Services were used to transmit advertising and promotional materials . 

. . by routing all such communications [through servers in] the United States.” Id. at 16.6 Plaintiffs 

further argue that WPP purposefully availed itself of conducting activities within the United States 

by directing its alleged promotional conduct into the United States; and thereby caused harm to 

Plaintiffs in the United States. Id. at 16–17. As for Imperial, Plaintiffs assert that “[j]urisdiction 

over Imperial is based on the trafficking of Plaintiffs’ confiscated Property completed in the United 

States by [WPP].” See Post-Remand Response Brief [D.E. 329 at 1]. Thus, personal jurisdiction 

over Imperial hinges entirely on personal jurisdiction over WPP. See Post-Remand Hearing Tr. 

[D.E. 341 at 212:9–12] (“The Court: So you are piggybacking on WPP for your personal 

jurisdiction allegation as to Imperial; is that accurate? Counsel: Yes.”). In turn, personal 

jurisdiction over WPP entirely hinges on the websites that advertise Habanos’ products. Id. at 

193:11–13 (“Here, [WPP’s] trafficking was based upon the conduct, the activity through the 

internet, through U.S. servers, through U.S. domain names, through U.S. social media 

companies.”). 

At the Post-Remand Hearing, WPP emphasized that “[t]he websites at issue were generally 

accessible, not just accessible in the U.S. or targeted at the U.S.” and that “[t]he websites did not 

allow for purchase of the product . . . anywhere [] in the United States [because] [i]t is illegal to 

do so”, thereby “demonstrat[ing] the absence of . . . targeting at the U.S.” Id. at 166:7–167:2.7

 

6 As to this criterion for minimum contacts, WPP asserts that its Spanish subsidiaries created the web 

content at issue in this case, thereby eliminating any connection between Plaintiffs’ cause of action and 

WPP’s contacts. See WPP Defendants’ Post-Remand Brief [D.E. 318 at 8]. WPP further argues that the 

alleged conduct of its Spanish subsidiaries cannot be imputed to WPP under an alter ego theory. Id. at 13. 

At the Post-Remand Hearing, Plaintiffs clarified that “[they] are not concerned about the Spanish entity. 

[They] are concerned about the conduct of WPP.” See Post-Remand Hearing Tr. [D.E. 341 at 199:11–13]. 

Therefore, the undersigned limits her analysis to WPP’s activities. 7 WPP explains that “it is illegal to buy Cuban tobacco products in (or commercially ship them to) Florida 

or anywhere in the U.S.” See WPP Defendants’ Post-Remand Brief [D.E. 318 at 10] (citing U.S. Office of 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 13 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 14 of

27
14 

The Eleventh Circuit has found that “the mere existence of a website that is visible in a forum and 

that gives information about a company and its products is not enough, by itself, to subject a 

defendant to personal jurisdiction in that forum.” Fraser v. Smith, 594 F.3d 842, 847 (11th Cir. 

2010) (internal quotation marks and citations omitted); see also Frida Kahlo Corp. v. Pinedo, No. 

18-21826-Civ, 2021 WL 4147876, at *5 (S.D. Fla. Sept. 13, 2021) (“Courts across jurisdictions 

have held that activity on the Internet, by itself, is not a sufficient minimum contact to establish 

‘purposeful availment’ under the Due Process Clause.”); Michael Grecco Prods., Inc. v. 

Imageselect B.V., No. 21-21999-CIV, 2022 WL 18779105, at *6 (S.D. Fla. Sept. 27, 2022) 

(“Plaintiff completely neglects to address [the] holding [in Frida Kahlo] that the existence of a 

website, on its own, is insufficient to show that a nonresident ‘purposefully availed’ itself to the 

forum[.]”). 

Plaintiffs’ arguments are further weakened by their failure to allege that WPP undertook

additional steps to “show that [the alleged] online activity [was] ‘aimed’ at” the United States for 

purposes of satisfying the Calder “effects” test. See Frida Kahlo, 2021 WL 4147876, at *5. As in 

Frida Kahlo, the social media platforms on which Habanos’ products are alleged to be advertised, 

see Sec. Am. Compl. [D.E. 208 ¶¶ 22 n.11], do not reference the United States; and Plaintiffs do 

not allege that the advertised products have ever been sold in the United States. See Frida Kahlo, 

2021 WL 4147876, at *5; cf. Del Valle v. Trivago GMBH, 56 F.4th 1265, 1276–77 (11th Cir. 

2022) (holding that both minimum contacts and “effects” test were satisfied by the defendants’ 

promotion of their websites via banner ads, follow-up emails directed at Florida residents, and 

efforts to maximize performance on search engine results pages; and that the defendantsfinancially

benefited from Florida residents’ bookings and web traffic). 

Foreign Assets Control, Cuba Sanctions FAQ (questions 731 and 769), 

https://ofac.treasury.gov/faqs/topic/1541). 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 14 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 15 of

27
15 

Given that the Second Amended Complaint fails to sufficiently allege minimum contacts 

as well as that the “effects” of WPP’s conduct were felt in the United States, Plaintiffs have failed 

to establish that this Court has personal jurisdiction over WPP under Rule 4(k)(2). See Frida 

Kahlo, 2021 WL 4147876, at *5. Moreover, such failure extends to Imperial, given Plaintiffs’ 

imputation theory. Accordingly, the undersigned recommends that Imperial’s Motion to Dismiss

and the WPP Defendants’ Motion to Dismiss be granted for lack of personal jurisdiction. 

FAILURE TO STATE A CLAIM

Defendants also argue that the Second Amended Complaint fails to state a claim because 

“(i) the claim is barred by the statute of repose; (ii) the claim arises entirely from the alleged 

conduct of Cuban companies, which does not constitute trafficking; (iii) the [Second Amended 

Complaint] does not plead that Defendants acted knowingly and intentionally; and (iv) Plaintiffs 

fail to plead the ownership element of a Title III claim.” See Joint Post-Remand Brief [D.E. 320 

at 12]. The undersigned addresses each of these arguments below. 

1. The Helms-Burton Act and the failure to state a claim standard

Title III of the Helms-Burton Act provides, in relevant part, as follows: 

[A]ny person that, after the end of the 3-month period beginning on the effective 

date of this subchapter, traffics in property which was confiscated by the Cuban 

Government on or after January 1, 1959, shall be liable to any United States 

national who owns the claim to such property for money damages [as set forth in 

subsections (i)–(ii).]

. . . 

In the case of property confiscated before March 12, 1996, a United States national 

may not bring an action under this section on a claim to the confiscated property 

unless such national acquires ownership of the claim before March 12, 1996. 

22 U.S.C. § 6082(a)(1)(A), (4)(B). Under Title III, “a person ‘traffics’ in confiscated property if 

that person knowingly and intentionally—(i) . . . uses . . . [the] confiscated property, (ii) engages 

in a commercial activity using or otherwise benefiting from [the] confiscated property, or (iii) 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 15 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 16 of

27
16 

causes, directs, participates in, or profits from, trafficking . . . by another person, or otherwise 

engages in trafficking . . . through another person, without the authorization of any United States 

national who holds a claim to the property.” Id. § 6023(13)(A).

“To survive a motion to dismiss brought pursuant to [Rule 12(b)(6)], a claim must contain 

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, 

meaning that it must contain factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Alexander v. Medley, No. 21-cv-24386, 

2022 WL 1102856, at *2 (S.D. Fla. Apr. 12, 2022) (quotation marks omitted) (citing Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The 

Court must accept the plaintiff’s allegations as true and construe them in the light most favorable 

to the [p]laintiff”; however, “a Court need not take allegations as true if they are merely ‘threadbare 

recitals of a cause of action’s elements, supported by mere conclusory statements.’” VSI Sales, 

LLC v. DiSimone, No. 20-61119-CIV, 2021 WL 8972144, at *2 (S.D. Fla. Apr. 13, 2021) 

(citations omitted).

2. Time bar 

Defendants first assert the affirmative defense that Plaintiffs’ claim is time-barred under 

the two-year repose period that bars Title III claims brought “more than 2 years after the trafficking 

giving rise to the action has ceased to occur.” See Joint Post-Remand Brief [D.E. 320 at 12] 

(internal quotation marks omitted) (quoting 22 U.S.C. § 6084). The Eleventh Circuit “commands 

that Rule 12(b)(6) dismissal on time limitations grounds is appropriate only if it is apparent from 

the face of the complaint that the claim is time-barred.” Havana Docks Corp. v. Carnival Corp., 

No. 19-cv-21724, 2020 WL 5517590, at *12 (S.D. Fla. Sept. 14, 2020) (quotation marks and 

citation omitted). 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 16 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 17 of

27
17 

Because Plaintiffs brought his action in 2020, the two-year Title III repose period extends 

only to 2018. In their pleading, Plaintiffs set forth the following purported timeline of Defendants’ 

trafficking: 

The unauthorized use of the [] Property by Imperial and Habanos also extended to 

[Non-party] Tabacuba’s management of the day-to-day business of all or some 

Cuban tobacco products from offices it maintained in the [] Property at all times 

from 2007 until at least October 29, 2020. Both Habanos, and Imperial, through 

its financial interests in Habanos and the other Cuban Joint Ventures, benefitted 

from Tabacuba’s continuous use of the [] Property during the entire time that 

Imperial owned interests in the Cuban Joint Ventures. Imperial also benefitted from 

use of the [] Property for marketing of Habanos’ products. 

. . . Upon information and belief, Tabacuba and Habanos have continuously used 

the [] [P]roperty without authorization from the [Plaintiffs] since at least 2010, and 

likely for many years before that, until the present. 

. . . Imperial and Habanos’ trafficking also includes use of the [] Property for 

marketing and publicity of Habanos’ products. 

Habanos itself documented its possession, control of, management, and use of the 

[] Property. In a February 2010 publicity piece entitled: “Cigar Factory Readings 

and Readers,” Habanos referred to the factory (the [] Property) “Standing on 

famous 23rd Street in Havana’s bustling Vedado neighborhood right between the 

14th and 16th streets,” as the “humongous and modern H. Upmann cigar factory.”

The continuous use of the [] Property includes the use of a portion of the [] Property 

by Imperial’s joint venture partner, Tabacuba, for its executive offices for the 

management of the Cuban tobacco business, and the use of the loading dock and 

space for warehousing and shipping Habanos’ products. Tabacuba’s name appears 

prominently on the building. 

See Sec. Am. Compl. [D.E. 208 ¶¶ 18, 78–80] (emphasis added). Plaintiffs also reference several 

photographs that purportedly illustrate Habanos’ use of the Property: “Composite Exhibit 6 

containing pictures published by the Habanos website of ‘visit the factories’ tours promoted by 

Habanos at the [] Property” and “Exhibit 7 [which] is a picture of the loading dock at the [] Property 

in operation.” Id. ¶ 79 n.39. However, Plaintiffs have stipulated to the fact that the photographs 

in Composite Exhibit 6 were taken in 2009; and that the photograph in Exhibit 7 was taken no later 

than January 2013. See Post-Remand Hearing Tr. [D.E. 341 at 61:25–62:2, 64:13–15]. Thus, 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 17 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 18 of

27
18 

Defendants argue that Habanos’ alleged use of the Property in 2009, 2010, and 2013 is conduct 

that significantly predates the two-year repose period under the Helms-Burton Act; and that 

Plaintiffs cannot impute Non-party Tabacuba’s alleged use of the Property through 2020 to WPP 

or Imperial. See Joint Post-Remand Brief [D.E. 320 at 13–14]. 

Plaintiffs counter that Tabacuba’s status as a non-party is irrelevant because “according to 

the definition of the Helms-Burton Act[,] [t]he remaining defendants are trafficking if they are 

profiting or participating in trafficking by another person”, even if that other “person” is a nonparty. See Post-Remand Hearing Tr. [D.E. 341 at 94:18–21]. However, even if the undersigned 

accepts as true Plaintiffs’ allegations about Tabacuba, the connection between Tabacuba’s alleged 

use of the Property and Defendants is far too attenuated. In fact, the Second Amended Complaint 

is devoid of allegations affirmatively connecting WPP or Imperial to Tabacuba’s use of the 

Property during the relevant actionable period. Rather, Plaintiffs allege in conclusory fashion that 

Imperial has simply “benefitted from” Tabacuba’s conduct; and entirely omit WPP from any 

allegation involving Tabacuba’s use of the Property. See, e.g., Sec. Am. Compl. [D.E. 208 ¶¶ 18, 

80]; see also VSI Sales, 2021 WL 8972144, at *2 (“[A] Court need not take allegations as true if 

they are merely threadbare recitals of a cause of action’s elements, supported by mere conclusory 

statements.”) (quotation marks omitted). 

Given that Plaintiffs do not allege that Habanos’ trafficking occurred past 2013 or how 

WPP and Imperial are implicated by Non-party Tabacuba’s alleged use of the Property in 2020, it 

is apparent from the face of the Second Amended Complaint that Plaintiffs’ claim against

Defendants is time-barred. Accordingly, the undersigned recommends that Defendants’ Joint 

Motion to Dismiss be granted on this ground. 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 18 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 19 of

27
19 

3. “Trafficking” 

Next, Defendants argue that “Habanos[’] and Tabacuba’s conduct does not qualify as 

trafficking”, hence, “neither does Imperial’s or WPP’s alleged participation in or profiting from 

that conduct.” See Joint Post-Remand Brief [D.E. 320 at 15]. Defendants rely on 22 U.S.C. § 

6023(13)(B)(iv), which provides that “trafficking” does not include “transactions and uses of 

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

official of the Cuban Government or the ruling political party in Cuba.” Defendants then seize on

the Helms-Burton Act’s definition of a “person” as “any person or entity, including any agency or 

instrumentality of a foreign state”, see id. § 6023(11), to argue that Habanos and Tabacuba, as 

agencies or instrumentalities of a foreign state, namely, Cuba, are exempt from the definition of 

“trafficking.” See Joint Post-Remand Brief [D.E. 320 at 15]. However, Congress did not include 

agencies or instrumentalities of Cuba in the definition of “agency or instrumentality of a foreign 

state” for purposes of the Helms-Burton Act, see id. § 6023(1), and per the canon of statutory 

construction, this Court may not add words to a statute. See De Fernandez v. CMA CGM S.A., 

21-CV-22778, 2023 WL 4014730, at *14 (S.D. Fla. Apr. 30, 2023), report and recommendation 

adopted, 2023 WL 4633553 (S.D. Fla. Jul. 20, 2023) (citing Friends of Everglades v. S. Fla. Water 

Mgmt. Dist., 570 F.3d 1210, 1224 (11th Cir. 2009)). Therefore, under a plain reading of the statute, 

Habanos and Tabacuba, as agencies or instrumentalities of Cuba, cannot be said to fall within the 

category of “persons” that are exempt from the definition of “trafficking” under the Helms-Burton 

Act. Moreover, as noted by Plaintiffs at the Post-Remand Hearing, exempting agencies or 

instrumentalities of Cuba would “eviscerate the actual intent of the [Helms-Burton] Act.” See

Post-Remand Hearing Tr. [D.E. 341 at 110:2–14]; see also Post-Remand Response Brief [D.E. 

330 at 6] (citing Havana Club Holding, S.A. v. Galleon S.A., 203 F.3d 116, 125 (2d Cir. 2000)) 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 19 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 20 of

27
20 

(“Congress intended to create a chilling effect that will deny the current Cuban regime venture 

capital [and] discourage third-country nationals from seeking to profit from illegally confiscated 

property[.]”) (quotation marks and citations omitted). Accordingly, the undersigned recommends 

that Defendants’ Joint Motion to Dismiss not be granted on the basis that Habanos and Tabacuba 

are exempted from the definition of “trafficking.” 

 WPP also individually argues that Plaintiffs have failed to allege that it “trafficked” in the 

Property because WPP “did not profit from or do anything with the [Property].” See WPP 

Defendants’ Post-Remand Brief [D.E. 318 at 13]. As noted above, to state a Title III claim, a 

plaintiff must allege that “a person ‘traffics’ in confiscated property [by] knowingly and 

intentionally—(i) . . . us[ing] . . . [the] confiscated property, (ii) engag[ing] in a commercial activity 

using or otherwise benefiting from [the] confiscated property, or (iii) caus[ing], direct[ing], 

participat[ing] in, or profit[ing] from, trafficking . . . by another person[.]” 22 U.S.C. § 

6023(13)(A). With respect to WPP, Plaintiffs allege, in relevant part, that WPP, “by assisting 

Imperial, Habanos, and Tabacuba in marketing and publicizing the Habanos[] products 

manufactured, stored at or shipped from the [] Property, including through extensive use of US 

Services, [] causes, directs, participates in, or profits from, or otherwise engages in, trafficking in 

the [] Property by Imperial, Habanos, and Cuba”. See Sec. Am. Compl. [D.E. 208 ¶ 96]. Based 

on these allegations, the undersigned finds that the Second Amended Complaint plausibly alleges 

trafficking by WPP. See de Fernandez v. Crowley Holdings, Inc., 593 F. Supp. 3d 1162, 1171 

(S.D. Fla. Mar. 23, 2022) (“[T]he Court finds that Plaintiffs have sufficiently alleged a violation 

of the Act.”). Therefore, the undersigned recommends that the WPP Defendants’ Motion to 

Dismiss not be granted on the basis that Plaintiffs have failed to allege that WPP “trafficked” in 

the Property. 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 20 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 21 of

27
21 

4. “Knowingly and intentionally”

Defendants further argue that Plaintiffs fail to plausibly allege that either WPP or Imperial 

“knowingly and intentionally trafficked in the confiscated [P]roperty without the authorization of 

a U.S. national who holds a claim to the [P]roperty.” See Joint Post-Remand Brief [D.E. 320 at 

16] (citing 22 U.S.C. § 6023(13)). In response, Plaintiffs contend that they have pled “that 

information about the confiscated Property was available to Defendants in corporate . . . records”

and that they placed Defendants on notice of the same via their March 31, 2020, pre-suit demand 

letter, including the following July 5, 1961, announcement in Cuba’s Official Gazette: 

First: The Nationalization, by means of forced expropriation, is decreed, and 

consequently the Cuban State, in complete authority, is awarded all the interest in 

assets and business entities located in the national territory and the rights and 

actions arising from the exploitation of the same, whatever the interest, title or mode 

of their ownership, of the following natural persons or judicial entities: 

. . . . 

96. Ramón Rodriguez e Hijos, S. en C. 

See Post-Remand Response Brief [D.E. 330 at 9–10] (citing Sec. Am. Compl. [D.E. 208 at Ex. 

5A]). Plaintiffs further posit that “[t]here is no requirement in the statute that the trafficker 

knowingly acts ‘without the authorization of any United States national who holds a claim to the 

property.’” Id. at 11. 

Notwithstanding the reference to “Ramón Rodriguez e Hijos, S. en C.” in Cuba’s Official 

Gazette, Plaintiffs fail to allege that Defendants knew or had reason to know that “Ramón 

Rodriguez e Hijos, S. en C.” was related in any way to the Property. Indeed, Defendants noted at 

the Post-Remand Hearing that the Gazette “doesn’t make any reference to the [P]roperty at this 

location”, that it “just refers to the limited partnership that allegedly owned the [P]roperty”, and 

that the reference could not have put “anyone on notice that the [P]roperty itself was confiscated.” 

See Post-Remand Hearing Tr. [D.E. 341 at 76:14–19]. Without more, the Second Amended 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 21 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 22 of

27
22 

Complaint fails to establish that Defendants acted “knowingly and intentionally” with respect to 

the Property at issue in Plaintiffs’ Title III claim. 

Further, in addition to requiring that the alleged wrongdoer knowingly and intentionally 

“traffics” in confiscated property, a plain reading of the Helms-Burton Act clearly requires that the 

alleged wrongdoer also knowingly and intentionally act “without the authorization of any United 

States national who holds a claim to the property.” 22 U.S.C. § 6023(13); see also Ruan v. United 

States, 142 S. Ct. 2370, 2377 (2022) (“We have accordingly held that a word such as ‘knowingly’ 

modifies not only the words directly following it, but also those other statutory terms that ‘separate 

wrongful from innocent acts.’”). As such, Plaintiffs’ disavowal of their duty at the pleading stage 

to plausibly allege that Defendants knowingly and intentionally acted without their authorization

is ineffective. Hence, the undersigned recommends that Defendants’ Joint Motion to Dismiss be 

granted on these grounds. 

5. Claim ownership 

Finally, Defendants argue that the Second Amended Complaint failsto allege that Plaintiffs

own the claim to the Property and that the Property was confiscated from a U.S. national. See

Joint Post-Remand Brief [D.E. 320 at 19–21] (citing 22 U.S.C. §§ 6082(a)(1)(A), (4)(B)). As 

noted above, the Helms-Burton Act requires that “[i]n the case of property confiscated before 

March 12, 1996, a United States national may not bring an action under this section on a claim to 

the confiscated property unless such national acquires ownership of the claim before March 12, 

1996.” See 22 U.S.C. § 6082(a)(4)(B). 

Plaintiffs allege that they are the “heirs and successors of Ramon Rodriguez Gutiérrez

[(‘Gutiérrez’)]. . . and the owners of a 90% interest in Ramón Rodriguez e Hijos Sociedad en 

Comandita (‘RRHSC’).” See Sec. Am. Compl. [D.E. 208 ¶ 1]. Plaintiffs further allege that 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 22 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 23 of

27
23 

“[b]efore 1961, RRHSC owned and operated the [Property] in Havana” and that “[u]ntil the time 

that RRHSC and the [Property] were confiscated . . . [Gutiérrez] owned and controlled RRHSC.” 

Id. ¶¶ 1, 28. Plaintiffs detail their descendance from Gutiérrez and their inheritance of their 

respective interests. Id. ¶¶ 24–33. However, Defendants contend that Plaintiffs’ allegations just 

confirm “that Gutiérrez did not own the claim to the RRHSC Property—RRHSC did—and that 

Plaintiffs, as Gutiérrez’s descendants, do not own the claim.” See Joint Post-Remand Brief [D.E. 

320 at 19]. Moreover, Defendants argue that Plaintiff Alfredo Ramon Forns (“Forns”) is entirely 

barred from recovering under the Helms-Burton Act; and that Plaintiffs Raul Lorenzo Rodriguez

(“Lorenzo Rodriguez”), Francisco Ramon Rodriguez (“Ramon Rodriguez”), and Christina Conroy 

(“Conroy”) are partially barred from recovering under the Helms-Burton Act. Id. at 20 (noting 

that Forns is alleged to have inherited his claim in 2013; and that Lorenzo Rodriguez, Ramon 

Rodriguez, and Conroy inherited a portion of their claims in 2019 upon the death of Esther Beltran 

Rodriguez) (citing Sec. Am. Compl. [D.E. 208 ¶¶ 31, 33]). 

Plaintiffs concede that Forns’ claim is subject to dismissal. See Post-Remand Response 

Brief [D.E. 330 at 13]; see also Garcia-Bengochea v. Carnival Corp., 57 F.4th 916, 931 (11th Cir. 

2023) (holding that the plaintiff’s claims failed because he inherited his interest in the confiscated 

property after March 12, 1996). However, the remaining Plaintiffs argue that their claims are

viable. Plaintiffs rely on De Fernandez v. CMA CGM S.A., 21-CV-22778, 2023 WL 4014730 

(S.D. Fla. Apr. 30, 2023), report and recommendation adopted, 2023 WL 4633553 (S.D. Fla. Jul. 

20, 2023), where the Court considered the defendants’ argument that the plaintiffs’ claims “must 

be dismissed because the [Helms-Burton] Act does not permit claims based on the indirect interests 

of shareholders.” Id. at *13. In De Fernandez, the plaintiffs had alleged that they “owned, in equal 

parts, the Cuban corporations Maritima Mariel SA, Compañía Azucarera Mariel S.A., and several 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 23 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 24 of

27
24 

other companies” and that “those companies owned the 70-Year Concession . . . that gave Maritima 

Mariel priority rights in the Bay of Mariel, as well as the extensive land holdings to the southeast, 

south, and west of the Bay of Mariel comprising the [c]onfiscated [p]roperty at issue.” Id. In 

concluding that the plaintiffs’ indirect ownership of the companies amounted to “ownership” of a 

claim under the Helms-Burton Act, the Court reasoned that “[t]he plain language of the [HelmsBurton] Act makes clear that plaintiffs who own a claim to confiscated property—not just 

plaintiffs who own or own a direct interest in the confiscated property—are entitled to relief”. Id.

at *14. Thus, the Court found that the plaintiffs’ “allegation of ownership of claims to the 

[c]onfiscated [p]roperty by virtue of their ownership of shares of entities that owned the properties 

is sufficient to state a claim under Title III of the [Helms-Burton] Act.” Id. (recommending that 

the motion to dismiss be denied “to the extent it [was] based on the argument that the HelmsBurton Act does not permit claims based on the interests of shareholders”). Here, Plaintiffs 

specifically allege that they are “the heirs and successors of [Gutiérrez]”; that they are “the owners 

of a 90% interest in [RRHSC]”; and that “RRHSC owned and operated” the Property. See Sec. 

Am. Compl. [D.E. 208 ¶ 1]. Based on the holding in De Fernandez, the undersigned concludes 

that Plaintiffs have plausibly alleged that they “own” their Title III claim by virtue of their 

inheritance of Gutiérrez’s 90% ownership interest in RRHSC. 

Moreover, to the extent that Defendants argue that dismissal is required because the Second 

Amended Complaint does not allege that the Cuban Government confiscated the Property from a 

U.S. national, “the plain language of the [Helms-Burton] Act makes it clear that claimants and 

property owners need not be United States nationals at the time of confiscation to bring a claim.” 

De Fernandez v. Crowley Holdings, Inc., No. 21-cv-20443, 2023 WL 2646346, at *2 (S.D. Fla. 

Mar. 27, 2023). “Rather, the plain language clearly provides a remedy for claimants whose 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 24 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 25 of

27
25 

property was confiscated by the Cuban government after the revolution and who—at the time the 

remedy is sought—are United States nationals.” Id. As a result, this argument for dismissal is 

also unavailing. 

Hence, the undersigned recommends that Defendants’ Joint Motion to Dismiss be granted 

only as to Forns on the basis that he does not “own” a Title III claim.

SUPPLEMENTAL RECOMMENDATION

In accordance with the foregoing considerations, the undersigned hereby withdraws her 

prior recommendations that this action be dismissed without prejudice to Plaintiffs refiling their 

action in a proper venue and that Imperial’s Motion to Dismiss, WPP Defendants’ Motion to 

Dismiss, and the Joint Motion to Dismiss be denied without prejudice as moot; and 

RESPECTFULLY RECOMMENDS that: 

 Imperial’s Motion to Dismiss [D.E. 226] be GRANTED IN PART for lack of 

personal jurisdiction;

 WPP Defendants’ Motion to Dismiss [D.E. 229] be GRANTED IN PART for lack 

of personal jurisdiction; and

 The Joint Motion to Dismiss [D.E. 227] be GRANTED IN PART for failure to state 

a claim on the grounds that the Second Amended Complaint is time-barred, fails to 

allege that Defendants acted “knowingly and intentionally”, and fails to allege that 

Forns “owned” a Title III claim. 

Pursuant to Local Magistrate Judge Rule 4(b), the parties have fourteen days from the date 

of this Report and Recommendation to file written objections, if any, with the Honorable Darrin 

P. Gayles, United States District Judge. Failure to file timely objections may bar the parties from 

attacking the factual findings contained herein on appeal. See Resolution Tr. Corp. v. Hallmark 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 25 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 26 of

27
26 

Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993). Further, “failure to object in accordance 

with the provisions of [28 U.S.C.] § 636(b)(1) waives the right to challenge on appeal the district 

court’s order based on unobjected-to factual and legal conclusions.” See 11th Cir. R. 3-1 (I.O.P. 

- 3). 

RESPECTFULLY SUBMITTED in Chambers in Miami, Florida, on this 28th day of 

November, 2023. 

___________________________________ 

ALICIA M. OTAZO-REYES

UNITED STATES MAGISTRATE JUDGE

cc: United States District Judge Darrin P. Gayles

Counsel of Record 

Case 1:20-cv-23287-DPG Document 345 Entered on FLSD Docket 11/28/2023 Page 26 of 26 Case 1:20-cv-23287-DPG Document 346-1 Entered on FLSD Docket 12/12/2023 Page 27 of

27