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 IN OPPOSITION TO 

DEFENDANTS’ JOINT MOTION FOR STAY 

 Plaintiffs, by and through their undersigned counsel, respectfully submit their opposition 

to Defendants’ Joint Motion for a Stay [of discovery] (the “Motion”) [ECF No. 230], and state: 

PRELIMINARY STATEMENT 

 Defendants seek what they call a “limited” stay. Motion at 1. In the case of Defendant 

Imperial Brands plc (“Imperial”), however, it is more accurate to classify the request as 

“indefinite” or “perpetual,” as there is no limitation at all. As it did at the commencement of the 

case, Imperial claims that it requires authorization from its government authority (previously the 

E.U., and now the U.K. government) to litigate in this Court, except to the extent of an earlier, 

limited, permission to litigate Imperial’s motion to dismiss. Motion at 3. Corporaćion Habanos, 

S.A. (“Habanos”) claims that the discovery order is premature until the upcoming Motion to 

Dismiss the Second Amended Complaint is decided as it claims it is subject to sovereign 

immunity. Motion at 7. WPP plc (“WPP”) Young & Rubicam LLC (“Y&R”) and BCW LLC 

(“BCW”, together with WPP and Y&R referred to collectively as the “WPP Defendants”) jointly 

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with Habanos & Imperial claim that the Motions to Dismiss will obviate the need for further 

proceedings and merit-based discovery. Motion at 3. The arguments propounded by Defendants 

in support of their respective motions to dismiss were previously presented to the Court by 

Defendants as grounds for finding that Plaintiffs’ proposed amended Complaint was futile. .[ECF 

Nos. 169 (by Habanos), 171 (by Imperial), 173 (by WPP Defendants)]. The Court disagreed 

with Defendants and found that the proposed Second Amended Complaint was not futile. [ECF 

No. 207]. More recently, Defendants moved for extension of time to file a joint scheduling 

report, again raising the same arguments for a stay.1 See ECF 217. The Court gave Defendants an 

extra 15-days to file the scheduling report, but otherwise denied that motion. See ECF 223. With 

the more recent entry of a Scheduling Order (ECF 234), the Court has in effect started the 

discovery and trial preparation “clock.” 

As demonstrated below, none of the Defendants offer sufficient cause to further delay 

merits discovery and ultimate resolution of this 2020 case. Moreover, a further delay of 

proceedings could prejudice Plaintiffs. The Court should deny Defendants’ Motion in its entirety. 

Argument 

 The movant for a stay of discovery bears the burden of proof to demonstrate the stays’ (i) 

necessity, (ii) appropriateness, and (ii) reasonableness. See Lewis v. Mercedes-Benz USA, LLC, 

19-CIV-81220-RAR, 2020 WL 4923640, at *4 (S.D. Fla. Mar. 25, 2020). Here, the stay is 

neither necessary, appropriate, or reasonable. 

While a district court has broad discretion to manage its own docket, including pre-trial 

activities such as discovery and scheduling, Cabrera v. Progressive Behavioral Sci., Inc., 331 

1

 See ECF 217 (Defendants’ Joint Motion for Extension of Time to File Joint Scheduling 

Report and Proposed Scheduling Order) 

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F.R.D. 185, 186 (S.D. Fla. 2019) citing to Johnson v. Bd. of Regents of Univ. of Georgia, 263 

F.3d 1234, 1269 (11th Cir. 2001), Clinton v. Jones, 520 U.S. 681, 706 (1997) (district courts 

have broad discretion to stay proceedings), overall stays of discovery are rarely granted. 

Nankivil v. Lockheed Martin Corp., 216 F.R.D. 689, 692 (M.D. Fla. 2003), aff'd, 87 Fed. Appx. 

713 (11th Cir. 2003). “[A] stay of discovery should be a sparingly ordered thing.” Ray v. Spirit 

Airlines, Inc., 12-61528-CIV, 2012 WL 5471793, at *3 (S.D. Fla. Nov. 9, 2012). 

 Defendants contend that “Courts in this district routinely stay discovery.” Motion at 3. 

To the contrary, “Motions to stay discovery pending ruling on a dispositive motion are generally 

disfavored in this district.” Flecha v. Neighbors Moving Services, Inc., 944 F. Supp. 2d 1201, 

1203 (S.D. Fla. 2013) citing to S.D. Local Rules, App. A, Discovery Practices Handbook I.D(5).2 

The moving party must demonstrate good cause and the Court must balance the harm caused by 

the delay against the possibility that the motion will resolve the entire action. Flecha v. 

Neighbors Moving Services, Inc., 944 F. Supp. 2d 1201, 1203 (S.D. Fla. 2013) citing to Feldman 

v. Flood, 176 F.R.D. 651, 652 (M.D. Fl. 1997). In making its determination, the Court must also 

consider the costs and burdens of proceeding with discovery. Cabrera v. Progressive Behavioral 

Sci., Inc., 331 F.R.D. 185, 186 (S.D. Fla. 2019). 

I. THE FACTORS WEIGH IN FAVOR OF ALLOWING DISCOVERY 

As noted, a stay of discovery pending the determination of a motion to dismiss, is the 

exception rather than the rule. Cabrera v. Progressive Behavioral Sci., Inc., 331 F.R.D. 185, 186 

(S.D. Fla. 2019). While overall stays of discovery are rarely granted, a motion to dismiss that 

2

 “Normally, the pendency of a motion to dismiss or motion for summary judgment will not 

justify a unilateral motion to stay discovery pending a ruling on the dispositive motion. Such 

motions for stay are generally denied except where a specific showing of prejudice or 

burdensomeness is made, or where a statute dictates that a stay is appropriate or mandatory.” S.D. 

Local Rules, App. A, Discovery Practices Handbook I.D(5). 

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proposes to dispose of the entire action may serve as “good cause” to stay discovery, but only if 

there is a strong likelihood that the motion will dispose of the action in its entirety. See Cabrera 

v. Progressive Behavioral Sci., Inc., 331 F.R.D. 185, 186 (S.D. Fla. 2019), see also CresthavenAshley Master Ass'n, Inc. v. Empire Indem. Ins. Co., 9:19-CV-80959, 2020 WL 705209, at *2 

(S.D. Fla. Feb. 12, 2020). 

In order to determine whether discovery should be stayed, the Court must first make a 

determination that the motion to dismiss at issue appears to be meritorious and will dispose of 

the entire case. Cabrera, 331 F.R.D. 651 (S.D. Fla. 2019). Here, Defendants arguments are 

based in part on what they contend are pleading failures. Those do not serve as basis for 

dismissal with prejudice. Moreover, there is no question that the WPP Defendants are subject to 

jurisdiction in New York if not in this Court. Again, no basis for disposal of the action in its 

entirety. 

A. THE LIKELYHOOD OF DEFENDANTS’ SUCCESS ON THE MERITS 

OF THEIR MOTIONS TO DISMISS WEIGH IN FAVOR OF THE 

PLAINTIFFS 

 Defendants have each already laid bare the basis of their motions to dismiss in their 

respective oppositions to Plaintiffs’ Motion for Leave to Amend the Amended Complaint. [ECF 

Nos. 168, 169, 173]. Each Defendant argued that Plaintiffs’ proposed amendments to the 

amended complaint were futile.3 Defendants there reiterated or reincorporated prior arguments 

from their respective motion(s) to dismiss. [ECF Nos. 168, 169, 173]. The Court has already 

taken a “preliminary peek” at the Defendants’ motions and granted Plaintiffs leave to amend the 

complaint. [ECF No. 207]. In making that determination, the Court found not futile Plaintiffs’ 

3

 A proposed amendment to a complaint is futile where the amended complaint would still 

be subject to dismissal. Patel v. Georgia Dept. BHDD, 485 Fed. Appx. 982, 982 (11th Cir. 2012). 

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proposed amendments. Consequently, there is not a strong likelihood that the Second Amended 

Complaint is subject to dismissal, and the upcoming motions to dismiss are not “clearly 

meritorious and truly case dispositive.”4 [See ECF No. 207 “the undersigned cannot conclude 

that the proposed Second Amended Complaint is ‘clearly insufficient or frivolous on its face’.”]. 

The Court as reflected in its more recent Order denying a stay of the filing of a joint scheduling 

order, [ECF 224] was unpersuaded by Defendants’ similar arguments. See ECF 217. It is fair to 

see that the Court has had now multiple, and not merely preliminary, “peeks” and found 

Defendants’ arguments wanting. Any stay of discovery would merely serve as an undue delay in 

the proceedings which, as set forth below, can serve as an extreme prejudice to each Plaintiff. 

B. THERE IS NO GOOD CAUSE TO STAY DISCOVERY 

 Defendants effectively seek to stay the current action indefinitely. Defendants’ Motion 

seeks a stay until after a final decision on their motions to dismiss, thus delaying discovery even 

further. Moreover, such delay would also compress all trial deadlines set in the Court’s recent 

Scheduling Order. The effect would be to further, and substantially, prejudice Plaintiffs in their 

ability to prove their case. Alternatively, the delays would effectively render the Scheduling 

Order a nullity. 

The instant action was commenced on August 6, 2020. [ECF No. 1]. Twenty-two days 

later, Imperial filed its first motion for a stay pending application for authority from the 

European Union to defend against the instant action. [ECF No. 14]. That application led to the 

instant action being stayed for over five months until the stay was lifted on February 12, 2021. 

[ECF No. 76]. Since that time, the parties have been engaged in motion practice revolving 

4

 A motion to stay discovery should only be grated if the motions to dismiss appear to be 

“clearly meritorious and truly case dispositive.” Feldman v. Flood, 176 F.R.D. 651, 652–53 (M.D. 

Fla. 1997) 

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around Defendants’ motions to dismiss. It is improper for Imperial and all Defendants to request 

a further stay of discovery and of all other substantive proceedings pending resolution of the 

motions to dismiss, especially given that Habanos effectively admits its intention to stay and 

delay the action further upon a decision adverse to it. And Imperial too, effectively seeks an 

unlimited stay based upon a secret UK process – which it purposely chose not to invoke over the 

last 15 months. 

 Imperial’s assertion that it will seek (or perhaps now only very recently, has sought) a 

stay of proceedings to obtain permission from the U.K. to continue litigating the instant action, 

makes matters worse. Further, Imperial’s admission that it failed until now to seek the additional 

permission that it now says it needs, is inexcusable. The fact that merits discovery may have 

been on “de-facto” hold changes nothing. If Imperial truly believed that it needed the permission, 

it has no excuse for failing to seek it in February of 2021, when the initial, limited, permission 

was granted. Nor can Imperial provide any reason why its failure should be imposed on 

Plaintiffs. 

In this regard, Plaintiffs note as well that there is no evidence that any UK or EU party 

has ever been sanctioned for purported violation of a “blocking” law that was admittedly enacted 

with a purpose of putting roadblocks in the way of the U.S. enforcement of the Helms Burton 

law. Nor did any purported fear of U.K. fines prevent Imperial from: (1) participating in 

scheduling of or attendance at depositions of the WPP Defendants on jurisdictional issues; (2) 

opposing Plaintiffs’ motion for leave to amend; or (3) seeking to stay the issuance of a 

Scheduling Order. Yet none of those actions are obviously within the scope of the prior limited 

permission granted by the U.K. See ECF 64-1 at 3, Schedule, Part 2 (authorizing only “Filing 

and litigating a motion to dismiss the complaint brought before” this Court). Thus, Imperial is 

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not concerned about exceeding the U.K. mandate when it believes that doing so serves Imperial’s 

interests. Significantly too, Imperial is subject to personal jurisdiction here for conduct in the 

U.S., not Cuba. The U.S. conduct by Imperial’s chosen agents, the WPP Defendants, is 

chargeable to Imperial, and in violation of U.S. law. There is, therefore, nothing “extraterritorial” about application of U.S. law to Imperial. 

And Imperial, of course, has not given any assurance that the UK government would not 

issue another arbitrarily limited “permission” if it deems it appropriate, after following whatever 

process (secret to Plaintiffs and to this Court) it may follow before deciding. Nor has Imperial 

given any time limit for the (secret) UK process to unfold. Also unavailing are Imperial’s 

arguments that the Court should stay discovery in the interests of international comity. The 

UK’s initial grant of permission allowed Imperial only limited permission to participate in this 

action. Plainly, the UK has reserved for itself the right to deny permission to defend against the 

action beyond the motion to dismiss stage. By doing so, the UK has demonstrated that it does 

not have confidence in the United States’ Courts. Thus, acting contrary to the mutual respect that 

underlies the theory of international comity. Habanos, in turn, has suggested that it will seek a 

stay to pursue an interlocutory appeal of a decision adverse to Habanos. 

The WPP Defendants for their part have not set forth any reason why discovery should 

not occur other than their argument that the action will be disposed in its entirety. The WPP 

Defendants cannot deny, however, that they are subject to personal jurisdiction in the U.S. 

Although Plaintiffs deny such entitlement, in the best case for them, the WPP Defendants would 

be entitled to a transfer, not dismissal. Furthermore, “being required to defend a lawsuit does not 

constitute a hardship or inequity sufficient to justify a stay of a proceeding.” Marc Irwin 

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Sharfman, M.D., P.A. v. Premier Med., Inc., 6:20-CV-1278-WWB-LRH, 2021 WL 6884300, at 

*2 (M.D. Fla. Dec. 29, 2021).5 

 In short, Defendants have failed to set forth any good cause why discovery cannot take 

place. 

C. THE BALANCING OF THE HARMS WEIGHS IN FAVOR OF THE 

PLAINTIFFS 

 An applicant for a stay “must make out a clear case of hardship or inequity in being 

required to go forward, if there is even a fair possibility that the stay for which he prays will 

work damage to someone else.” Landis v. N. Am. Co., 299 U.S. 248, 255 (1936). The Court 

must balance the harm caused by stay against the possibility that the motion will resolve the 

entire action. Flecha v. Neighbors Moving Services, Inc., 944 F. Supp. 2d 1201, 1203 (S.D. Fla. 

2013). As set forth above, the Court has already twice “peeked at” the arguments set forth in the 

motions to dismiss. The Court first determined that Plaintiffs’ proposed amendments to the 

Complaint were not futile. More recently, it determined that Defendants’ arguments did not 

support staying the entry of a Scheduling Order. The Court, therefore, has twice considered the 

issue and apparently concluded there is insufficient likelihood that the Defendants’ motions to 

dismiss will dispose of the entire action. 

Indeed, Defendants’ Motion does not set forth any hardship, prejudice, inequity or undue 

burden if the instant action is allowed to proceed. Imperial does repeat a list of theoretical 

5

 Even if the Court were to consider the cost of engaging in discovery as a factor in 

Defendants’ request, Imperial’s estimated net income from 2021 exceeds two billions dollars 

(https://www.businesswire.com/news/home/20220201005385/en/Imperial-announces-2021-

financial-and-operating-results), and it sold its premium cigar business (including its interest in 

Habanos) in 2020 for $1.43 billion dollars, WPP’s 2021 revenue exceeded ten billion dollars( 

https://www.wpp.com/news/2022/02/2021-preliminary-results ), and Habanos reported revenues 

of over five hundred million in 2020 ( https://halfwheel.com/habanos-s-a-generates-507-millionin-2020-revenue-china-now-largest-market/393576/ ). 

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possible fines and legal implications should Imperial go forward with the litigation without UK 

permission. But Imperial provided the same list (based on EU law) in its motion for stay in 

August of 2020. Imperial, however, was obviously not sufficiently concerned about possible UK 

fines and penalties to seek permission to further litigate this case during the 15-monrths or so 

since it received the UK’s initial, limited, permission. Imperial has not set forth any basis as to 

why it has not applied for further authority to defend the action. Imperial should not be heard to 

impose the costs of its failure to do so on Plaintiffs and this Court. 

Moreover, further delay may severely prejudice the Plaintiffs. Section 302(a)(4) of the 

Helms Burton Act states “[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.” 22 U.S.C. § 6082. 

Several court orders in this district have interpreted the effect of this statute as extinguishing any 

claim upon the death of a claimant (although no court order known to Plaintiffs involved an 

already-litigating claimant) after March 12, 1996.6 Should it be ultimately concluded that the 

death of a claimant extinguishes their claim, then each Plaintiff (and their estate and heirs and 

successors) is at risk of having their claim extinguished by the passage of time. 

Most of the Plaintiffs are either middle-aged or senior citizens. One Plaintiff, Luis 

Rodriguez, is 95 years old, Maria Teresa Landa sadly passed away, three of the Plaintiffs are in 

6

 See Herederos de Roberto Gomez Cabrera, LLC v. Teck Res. Ltd., 535 F. Supp. 3d 1299, 

1308 (S.D. Fla. 2021), reconsideration denied, 20-21630-CIV, 2021 WL 3054908 (S.D. Fla. July 

20, 2021) (“The Act expressly requires that actionable claims must be acquired before March 12, 

1996. . . . no United States national may bring an action unless he acquired ownership of the 

claim before March 12, 1996.”); de Fernandez v. Seaboard Marine, Ltd., 20-CV-25176, 2021 WL 

3173213, at *9 (S.D. Fla. July 27, 2021), reconsideration denied sub nom. Fernandez v. Seaboard 

Marine, Ltd., 20-CV-25176, 2021 WL 4902506 (S.D. Fla. Oct. 21, 2021) (“the Estates do not have 

an actionable ownership interest in the Confiscated Property and cannot maintain a Title III action 

on behalf of the deceased”). 

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their mid-70’s, and at least two Plaintiffs are in ill health. Surely, it cannot be the case that 

Defendants should be allowed to successfully defend against a Helms Burton claim, not on the 

merits, but by simply waiting out the clock. Further delay in this action poses an extreme 

prejudice and hardship to Plaintiffs. In short, the potential harm, the extinguishment of the 

claim, outweighs any posited harm to the Defendants. Discovery should be allowed. 

CONCLUSION 

For the stated reasons, the Court should deny Defendants’ Joint Motion for a Stay of 

Discovery. 

 Respectfully submitted, 

 

RODRIGUEZ TRAMONT & NUÑEZ P.A. 

By: /s/ Paulino A. Núñez Jr. 

 Paulino A. Núñez Jr. 

 Florida Bar No. 814806 

 Primary email: pan@rtgn-law.com 

 255 Alhambra Circle 

 Suite 1150 

 Coral Gables, FL 33134 

Telephone: (305) 350-2300

BERENTHAL & ASSOCIATES, P.A. 

By: /s/ David W. Berenthal 

 David W. Berenthal 

 Florida Bar No. 159220 

 E-mail: dwb@berenthalaw.com 

 255 Alhambra Circle 

 Suite 1150 

 Coral Gables, FL 33134 

Telephone: (212) 302-9494

CERTIFICATE OF SERIVCE 

 I HEREBY CERTIFY that on May 5, 2022, a true and correct copy of the foregoing was 

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

filing to all counsel and parties of record. 

 /s/ Paulino A. Núñez Jr. 

 Paulino A. Núñez Jr. 

 

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