UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:20-cv-23287-GAYLES/OTAZO-REYES 

LUIS MANUEL RODRIGUEZ, et al.,

Plaintiffs, 

v. 

IMPERIAL BRANDS PLC, et al., 

Defendants. 

________________________________________/ 

ORDER

THIS CAUSE comes before the Court on Defendant Corporación Habanos, S.A.’s 

(“Habanos”) Motion to Dismiss the Second Amended Complaint [ECF No. 225]; Defendant 

Imperial Brands plc’s (“Imperial”) Motion to Dismiss the Second Amended Complaint [ECF No. 

226]; Defendants WPP plc (“WPP”), Young & Rubicam LLC (“Y&R”), and BCW LLC’s

(“BCW”) (collectively, the “WPP Defendants”) Motion to Dismiss the Second Amended 

Complaint [ECF No. 229]; and Imperial, Habanos, and WPP Defendants’ (collectively, the 

“Defendants”) Motion to Dismiss the Second Amended Complaint [ECF No. 227]. Defendants’ 

Motions to Dismiss, [ECF Nos. 225, 226, 227, 229], were referred to Magistrate Judge Alicia M. 

Otazo-Reyes, pursuant to 28 U.S.C. § 636(b)(1)(B), for a Report and Recommendation. [ECF No. 

167]. Judge Otazo-Reyes held a hearing on Defendants’ Motions to Dismiss on July 26, 2022, 

[ECF No. 273], and on November 2, 2022, she issued her Report and Recommendation. 

(“Report”), [ECF No. 286]. Plaintiffs timely objected to the Report (the “Objections”), [ECF No. 

294], and Defendants filed responses to the Objections, [ECF Nos. 295, 296].

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I. BACKGROUND1

Plaintiffs Luis Manuel Rodriguez, Maria Teresa Rodriguez, Alfredo Ramon Forns, Ramon 

Alberto Rodriguez, Raul Lorenzo Rodriguez, Christina Conroy, and Francisco Ramon Rodriguez

(collectively, the “Plaintiffs”) filed this action following the Trump Administration’s activation of 

Title III of the Cuban Liberty and Democratic Solidarity Act of 1996, 22 U.S.C. § 6021, et seq.

(the “Helms-Burton Act”). Plaintiffs seek compensation under the Helms-Burton Act from 

Defendants, alleging that they have profited from using property in Cuba that Plaintiffs owned 

before the Cuban revolution. 

Plaintiffs’ property consists of a building known as the Partagás factory and a modern 

mixed-use building adjacent to the Partagás factory (the “Confiscated Property”). Plaintiffs allege

that Defendants trafficked in the Confiscated Property in violation of the Act. Plaintiffs claim that

Defendants have used and continue to use the Confiscated Property without compensation or 

authorization from Plaintiffs. These uses include the production and shipment of millions of handrolled cigars manufactured and processed at the Confiscated Property and their marketing through 

online portals on the United States-based social media platforms Twitter, YouTube, and Instagram.

As fully detailed in the Report, the parties’ roles in the alleged trafficking scheme are as 

follows: Habanos and non-party Tabacuba, the Cuban tobacco monopoly company, used the 

Confiscated Property in Cuba to manage, produce, store, and ship hand-rolled cigars and other 

tobacco products without authorization from Plaintiffs; Imperial and Habanos marketed and 

publicized Habanos’ products; Imperial and Tabacuba retained agents to market and publicize 

Habanos’ products, including WPP through its advertising agency subsidiaries, Y&R and BCW; 

1 The Court incorporates the Report’s Procedural and Factual Background. [ECF No. 286 at 2–4].

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and Defendants established social media accounts on Twitter, YouTube, and Instagram to facilitate 

the marketing of Habanos’ products. [ECF No. 286 at 9].

Following jurisdictional discovery, a hearing on Defendants’ Motions to Dismiss, and 

post-hearing briefing, Judge Otazo-Reyes issued her Report. The Report recommends dismissal as 

to all Defendants because venue is not proper in the Southern District of Florida and because the 

Second Amended Complaint does not contain sufficient allegations to transfer the action to a 

particular district. [ECF No. 286]. In particular, the Report made the following findings:

I. Venue is improper in the Southern District of Florida under 28 U.S.C. § 1391(f)(4), 

as that section provides for venue against a foreign state or political subdivision 

thereof in the District of Columbia;

II. Under 28 U.S.C. §§ 1391(f)(1) and 1391(b)(2), venue is improper in the Southern 

District of Florida because Plaintiffs do not allege that any of the Defendants 

undertook these alleged activities in the Southern District of Florida; and

III. Transfer of this case to New York is not warranted, and it should be dismissed under

Federal Rule of Civil Procedure 12(b)(3) because Plaintiffs’ Second Amended 

Complaint is devoid of allegations establishing that Defendants’ purported tortious 

conduct occurred in New York, or that a substantial part of the events or omissions 

giving rise to the claims occurred in New York for venue purposes under 28 U.S.C. 

§§ 1391(f)(1) or 1391(b)(2).

Id. at 6–7.

Plaintiffs do not object to the Report’s finding that venue in the Southern District of Florida 

is improper as to Habanos. However, in their Objections, Plaintiffs argue that Judge Otazo-Reyes 

erred by (1) recommending dismissal against the Imperial and the WPP Defendants because they 

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waived venue and only Habanos moved to dismiss for improper venue; (2) raising the issue of 

venue sua sponte as to Imperial and the WPP Defendants; (3) not addressing all of Imperial’s and 

the WPP Defendants’ arguments for dismissal; and (4) recommending dismissal of the action as 

to Imperial and the WPP Defendants, rather than transfer of the action against them to the Southern 

District of New York, as the remedy for improper venue. See [ECF No. 294]. In response, Imperial 

and the WPP Defendants contend that (1) Plaintiffs had fair notice and a full opportunity to oppose 

dismissal of the entire action; (2) the Report correctly recommends dismissal rather than transfer 

to another venue; and (3) Plaintiffs’ objection that the Court erred by not addressing all their

arguments does not constitute a valid objection. [ECF No. 296 at 2–4].

II. LEGAL STANDARD

A district court may accept, reject, or modify a magistrate judge’s report and 

recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which 

objection is made are accorded de novo review if those objections “pinpoint the specific findings 

that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see 

also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific 

objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint 

Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc., 

208 F. App’x 781, 784 (11th Cir. 2006). 

III. DISCUSSION

In her Report, Judge Otazo-Reyes finds that the Southern District of Florida is not the 

proper venue for this action and that this case should be dismissed without prejudice. Although 

Imperial and the WPP Defendants did not move to dismiss for improper venue, Judge Otazo-Reyes 

found that Habanos’ venue argument was dispositive as to all Defendants. [ECF No. 286 at 6 n. 

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3]. However, the Report does not specifically address whether Imperial and the WPP Defendants 

waived the improper venue issue by failing to raise it in their initial motions to dismiss. See 

Lipofsky v. N.Y. State Workers Comp. Bd., 861 F.2d 1257, 1259 (11th Cir. 1988). Indeed, the Court 

may consider dismissal of this case sua sponte for lack of venue as to the WPP Defendants as long 

as the parties are given an opportunity to present their views on the issue. [ECF No. 286 at 6 n. 3]; 

Algodonera De Las Cabezas, S.A. v. Am. Suisse Cap., Inc., 432 F.3d 1343, 1345 (11th Cir. 2005)

(citing Lipofsky, 861 F.2d at 1259). However, the Eleventh Circuit Court of Appeals held that a 

district court may dismiss a suit sua sponte for lack of venue only “in the absence of a waiver.”

Lipofsky, 861 F.2d at 1259.

Based on its de novo review of the record, including the Report, Plaintiffs’ objections, and 

Defendants’ responses, this Court agrees with Judge Otazo-Reyes’s analysis and finding that venue 

is improper as to Habanos. However, the Court finds that remand is appropriate to give the 

Magistrate Judge an opportunity to consider whether Imperial and the WPP Defendants have 

waived the improper venue issue.

IV. CONCLUSION

Based on the foregoing, it is ORDERED AND ADJUDGED as follows:

1. Magistrate Judge Alicia M. Otazo-Reyes’s Report and Recommendation,

[ECF No. 286], is AFFIRMED and ADOPTED in part and incorporated into this 

Order by reference;

2. Defendant Habanos’ Motion to Dismiss, [ECF No. 225], is GRANTED;

3. This matter is REMANDED to Magistrate Judge Otazo-Reyes for further 

proceedings and a report and recommendation as to whether Defendant Imperial 

and the WPP Defendants waived the defense of improper venue. The Magistrate 

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Judge may address other issues if warranted; and

4. This case is STAYED pending a Report and Recommendation on the remanded 

issues.

DONE AND ORDERED in Chambers at Miami, Florida, this 31st day of March, 2023.

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

cc: All Counsel of Record

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