UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

20-CV-20157-KMW

MARLENE CUETO IGLESIAS and

MIRIAM IGLESIAS ALVAREZ,

Plaintiffs,

v. 

PERNOD RICARD, Public Societe 

Anonyme, 

Defendant.

________________________________/

ORDER

THIS MATTER is before the Court on Defendant Pernod Ricard S.A.’s Motion to Dismiss 

the First Amended Complaint under Fed. R. Civ. P. 12(B)(1), 12(B)(2), 12(B)(5) and 12(B)(6). [DE 

30]. Plaintiffs have filed a Response in Opposition [DE 33], and Defendant has filed a Reply [DE 

34], making this matter ripe for disposition.

1 For the following reasons, the Court grants

Defendant’s Motion to Dismiss, in part, and grants Plaintiffs leave to file a Second Amended 

Complaint.

I. BACKGROUND

Plaintiff Iglesias filed her initial complaint on January 14, 2020 alleging the Cuban 

Government forcefully confiscated Conac Cueto, C.I.A., (“Cueto”) a Cuban-based cognac 

producer and seller founded by her father, Fernando Tomas Cueto Sanchez. In her initial 

complaint, Plaintiff alleged that all Cueto’s assets, including intellectual property, were seized by 

1 Defendant has also filed a Notice of Supplemental Authority [DE 37], which this Court has considered in 

ruling on this motion. 

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the Cuban Government without compensation, merged into the Cuban Government Rum 

Company and eventually rebranded as Havana Club. [DE 1 at 4−6].

Defendant filed a motion to dismiss the initial complaint on March 24, 2020, citing multiple 

grounds under Fed. R. Civ. P. 12(b). [DE 19]. Pursuant to Fed. R. Civ. P. 15(a)(1)(B), Plaintiffs2

filed a First Amended Complaint on April 6, 2020. [DE 22]. Plaintiffs allege that the Cuban 

Government partnered with Defendant Pernod Ricard (“Pernod”) to distribute the Havana Club 

brand. [DE 22 at 6]. On April 20, 2020, Defendant filed the Motion to Dismiss the First Amended 

Complaint currently before the Court. [DE 30]. 

II. THE FIRST AMENDED COMPLAINT

Plaintiffs claim damages pursuant to Title III of the LIBERTAD Act, 22 U.S.C. § 6082, and 

allege that Defendant trafficked in property owned by the Cueto family which was confiscated by 

the Cuban Government on or after January 1, 1959. [DE 22 at para. 39, 40]. The Subject Property 

is described as 100% interest in certain property of Conac Cueto, C.I.A., a Cuban company, 

originally located at Avenue 25 #5401, Almendares, Buena Vista, Havana, Cuba. [DE 22 at para.

21]. Fernando Tomas Cueto Sanchez founded Conac Cueto in the early 1950’s. [DE 22 at para. 

23]. The property confiscated from Cueto included intellectual property, oak barrels, bottles, 

labels, corks, tasters, meters, and other assets the Company used in the production and sale of 

cognac. [DE 22 at para. 25].

Plaintiffs allege that, from about 1993 until today, Defendant knowingly and intentionally 

commenced, conducted, promoted and distributed its Havana Club brand and line of products 

worldwide using the assets and intellectual property of the Subject Property without authorization 

of Plaintiffs. [DE 22 at para. 33]. Additionally, from about 1993 and for a least a year after, 

Defendant knowingly and intentionally participated in and profited from the communist Cuban 

2 Plaintiff Miriam Iglesias Alvarez joined the amended complaint as the surviving spouse of Cueto’s 

deceased founder. [DE 22 at 5−6]. Both Plaintiffs became United States citizens on August 5, 1986 and 

are residents of Los Angeles County, California.

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Government’s possession of the Subject Property without the authorization of Plaintiffs. [DE 22

at para. 34].

III. THE POSITIONS OF THE PARTIES

Defendant Pernod moves to dismiss this matter on multiple grounds. Pernod first asserts 

that the Court lacks personal jurisdiction. Specifically, Pernod maintains that because it is a 

foreign corporation, Plaintiffs cannot establish general personal jurisdiction based on Pernod’s 

contacts with Florida or the contacts of Pernod’s Florida-based subsidiaries. Pernod next 

contends that Plaintiffs cannot establish specific jurisdiction over it because Plaintiffs’ claims 

pertain to activity that occurred entirely outside of the United States. Pernod further argues that 

this Court lacks subject matter jurisdiction over this matter because Plaintiffs have failed to 

sufficiently allege that Pernod knowingly trafficked in property in which Plaintiffs have a claim, or 

that Plaintiffs have an interest in the property at issue. Finally, Pernod asserts that Plaintiffs failed 

to properly serve the Defendant.

In support of these contentions, Pernod has submitted the Declaration of Antoine Brocas, 

the Group Corporate Affairs Director and Secretary of the Board at Pernod Ricard, S.A. [DE 30-

1]. In the Declaration, Mr. Brocas, who states that he has been in his position since September 

2018 and is responsible for the organization of Pernod’s directors and the corporate governance 

of the group [DE 30-1 at para. 1], attests that Pernod’s Florida-based subsidiaries have separate 

corporate interests and distinct officers from Defendant Pernod. 

In response, Plaintiffs argue that Defendant’s Florida-based subsidiary, Pernod USA LLC,

is the alter ego of Defendant Pernod. [DE 33 at 3, 6−9]. Plaintiffs contend that as such, their 

Florida contacts and activities may be imputed to Pernod and are sufficient to establish personal 

jurisdiction over the Defendant. Plaintiffs also contend that subject matter has been established:

Plaintiffs have standing because they hold an interest in Cueto and were harmed by Defendant 

Pernod’s distribution of the Havana Club brand worldwide using Cueto property. Plaintiffs further 

contend that they have properly pled a cause of action under the Helms-Burton Act by alleging 

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that the Defendant has knowingly trafficked in Plaintiffs’ property that was confiscated by the 

Cuban Government. Further, Plaintiffs dispute Defendant’s contention that Pernod was not 

properly served pursuant to the French Code of Civil Procedure and specifically point to the

applicable Article under that Code to establish that service of process was proper. Finally, 

Plaintiffs request that if the Court agrees with Defendant’s arguments regarding jurisdiction, 

Plaintiffs be permitted to conduct brief discovery into the ties of Pernod Ricard USA LLC and 

Defendant. [DE 33 at 1−2].

IV. APPLICABLE LAW

A. Helms-Burton Act

On March 12, 1996, Congress passed the Cuban Liberty and Democratic Solidarity 

(LIBERTAD) Act of 1996, 22 U.S.C. §§ 6021–6091, commonly referred to as the “Helms-Burton

Act.” The Helms-Burton Act (“Act”) was intended “to strengthen international sanctions against 

the Castro government” and, “to protect United States nationals against confiscatory takings and 

the wrongful trafficking in property confiscated by the Castro regime.” 22 U.S.C. §§ 6022(2), (6).3

Title III of the Act was designed to deter trafficking in wrongfully confiscated property by permitting 

United States nationals who were victims of the confiscations to be endowed with a judicial 

remedy in the courts of the United States that would deny traffickers any profits from economically 

exploiting wrongful seizures. § 6081(11); see also § 6082(a)(1)(A). Specifically, Title III provides, 

“any person that . . . traffics in property which was confiscated by the Cuban Government on or 

3 Until recently, since the time that the Helms-Burton Act was passed, every President has invoked Title 

III’s waiver provision which prevented any person from seeking a remedy under that Title. See Odebrecht 

Const., Inc. v. Prasad, 876 F. Supp. 2d 1305, 1312 (S.D. Fla. 2012). On April 17, 2019, however, the U.S. 

Department of State announced that the federal government would no longer suspend Title III. See U.S. 

Department of State, Secretary of State Michael R. Pompeo’s Remarks to the Press (Apr. 17, 2019), 

https://www.state.gov/remarks-to-the-press-11/. As a result, on May 2, 2019, those claiming injury from 

property confiscated in Cuba were able to bring an action under Title III of the Act for the first time.

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after January 1, 1959, shall be liable to any United States national who owns the claim to such 

property for money damages.” § 6082(a)(1)(A).4

Pursuant to 22 U.S.C. § 6083, one who alleges ownership of claims to confiscated 

property under the Act may submit a certification of a claim to ownership that has been made by 

the Foreign Claims Settlement Commission under title V of the International Claims Settlement 

Act of 1949 (22 U.S.C. § 1643, et seq.). This certification acts as “conclusive proof” of ownership 

of a claim in a civil action under the Act. § 6083(a)(1). For claims that have not been certified by 

the Foreign Claims Settlement Commission, “the court may appoint a special master, including

the Foreign Claims Settlement Commission, to make determinations regarding the amount and 

ownership of the claim.” § 6083(a)(2). 

4 The Act defines “Traffics” as follows:

(A) As used in subchapter III, and except as provided in subparagraph (B), a person “traffics” in 

confiscated property if that person knowingly and intentionally—

(i) sells, transfers, distributes, dispenses, brokers, manages, or otherwise disposes of 

confiscated property, or purchases, leases, receives, possesses, obtains control of, 

manages, uses, or otherwise acquires or holds an interest in confiscated property,

(ii) engages in a commercial activity using or otherwise benefiting from confiscated property, 

or

(iii) 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, without the authorization of any United States national who holds 

a claim to the property.

22 U.S.C. § 6023 (13)(A).

Under the Act, “Property” is defined as:

(A) The term “property” means any property (including patents, copyrights, trademarks, and any other 

form of intellectual property), whether real, personal, or mixed, and any present, future, or 

contingent right, security, or other interest therein, including any leasehold interest.

(B) For purposes of subchapter III of this chapter, the term “property” does not include real property 

used for residential purposes unless, as of March 12, 1996—

(i) the claim to the property is held by a United States national and the claim has been certified 

under title V of the International Claims Settlement Act of 1949; or

(ii) the property is occupied by an official of the Cuban Government or the ruling political party 

in Cuba.

22 U.S.C. § 6023 (12).

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B. Motion to Dismiss Standard

To survive a motion to dismiss, a complaint must include “enough facts to state a claim to 

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A “claim 

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). In ruling on a motion to dismiss, the court must accept the factual 

allegations in the complaint as true and construe them in the light most favorable to the plaintiff.

See Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1169 (11th Cir. 2014).

V. ANALYSIS

A. Personal Jurisdiction

“A court must dismiss an action against a defendant over which it has no personal 

jurisdiction.” Verizon Trademark Servs., LLC v. Producers, Inc., 810 F. Supp. 2d 1321, 1323−24 

(M.D. Fla. 2011). To withstand a motion to dismiss, the plaintiff must plead sufficient facts to 

establish a prima facie case of jurisdiction over the non-resident defendant. Virgin Health Corp. 

v. Virgin Enters. Ltd., 393 F. App’x 623, 625 (11th Cir. 2010). The district court must accept the 

facts alleged in the complaint as true, to the extent they are uncontroverted by the defendant’s 

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

defendant sustains its burden of challenging the plaintiff’s allegations through affidavits or other 

competent evidence, the plaintiff must substantiate the jurisdictional allegations in the complaint 

by affidavits, testimony, or other evidence of its own. Future Tech. Today, Inc. v. OSF Healthcare 

Sys., 218 F.3d 1247, 1249 (11th Cir. 2000). Where the plaintiff’s complaint and supporting 

evidence conflict with the defendant’s affidavits, the court must construe all reasonable inferences 

in favor of the plaintiff. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990). Where the court’s 

jurisdiction has not been established, dismissal under Fed. R. Civ. P. 12(b)(2) is appropriate.

When deciding the issue of personal jurisdiction, a court must conduct a two-part inquiry. 

See Future Tech. Today, Inc., 218 F.3d at 1249 (citing Sculptchair, Inc. v. Century Arts, Ltd., 94 

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F.3d 623, 626 (11th Cir. 1996)). First, the court must determine whether the applicable state 

statute governing personal jurisdiction is satisfied. Id. Thereafter, if the requirements of the longarm statute are satisfied, the court must inquire as to “whether sufficient minimum contacts exist 

between the defendants and the forum state so as to satisfy ‘traditional notions of fair play and 

substantial justice’ under the Due Process Clause of the Fourteenth Amendment.” Sculptchair, 

94 F.3d at 626 (quoting Int’l Shoe v. Washington, 326 U.S. 310, 316 (1945)).

5

A federal court may exercise either of two forms of personal jurisdiction: general 

jurisdiction or specific jurisdiction. As the Supreme Court explained:

[O]ur decisions have recognized two types of personal jurisdiction: “general”

(sometimes called “all-purpose”) jurisdiction and “specific” (sometimes called 

“case-linked”) jurisdiction. “For an individual, the paradigm forum for the exercise 

of general jurisdiction is the individual’s domicile; for a corporation, it is an 

equivalent place, one in which the corporation is fairly regarded as at home.” A 

court with general jurisdiction may hear any claim against that defendant, even if 

all the incidents underlying the claim occurred in a different State. But “only a 

limited set of affiliations with a forum will render a defendant amenable to” general 

jurisdiction in that State.

Specific jurisdiction is very different. In order for a state court to exercise specific 

jurisdiction, “the suit” must “aris[e] out of or relat[e] to the defendant’s contacts with 

the forum.” In other words, 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.” For this 

reason, “specific jurisdiction is confined to adjudication of issues deriving from, or 

connected with, the very controversy that establishes jurisdiction.”

Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty. 137 S.Ct. 1773, 

1779–80 (2017) (citations omitted) (emphasis in original).

5 In Sculptchair, the Court examined the application of the Fourteenth Amendment’s Due Process Clause

to the exercise of specific jurisdiction, but as explained in Oldfield, the “language and policy considerations 

of the Due Process Clauses of the Fifth and Fourteenth Amendments are virtually identical.” Oldfield, 558 

F.3d at 1219 n.25. Accordingly, for purposes of this Order, the Court assumes that the Fifth Amendment 

imposes the same restrictions on the exercise of personal jurisdiction by a federal court as does the 

Fourteenth Amendment. 

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Florida’s long-arm statute “provides for both specific and general jurisdiction.” Louis 

Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1352 (11th Cir. 2013) (citing Fla. Stat. 

§ 48.193(1)−(2)). Thus, Defendant may be subject to personal jurisdiction under Florida’s longarm statute in two ways. First, § 48.193(1)(a) lists acts that subject a defendant to specific 

personal jurisdiction—that is, jurisdiction over suits that arise out of or relate to a defendant’s 

contacts with Florida. Second, § 48.193(2) provides that Florida courts may exercise general 

personal jurisdiction—that is, jurisdiction over any claims against a defendant, whether or not they 

involve the defendant’s activities in Florida—if the defendant engages in “substantial and not 

isolated activity” in Florida. Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203 (11th Cir. 

2015). Florida law governs the extent of the long-arm statute. Accordingly, federal courts are 

required to construe the statute in accordance with rulings of the Florida Supreme Court, or if that 

Supreme Court has not ruled on the matter, Florida’s intermediate courts. Sculptchair, 94 F.3d 

at 627 (citing Cable/Home Commc’n Corp. v. Network Prods., 902 F.2d 829, 856 (11th Cir. 1990)). 

In this case, Plaintiffs fail to specify in the First Amended Complaint whether they seek to 

establish general or specific jurisdiction over the Defendant. Rather, Plaintiffs advance several

broad allegations in their Response to the Motion to Dismiss regarding Defendant’s ties to the 

state of Florida and Defendant’s subsidiary’s ties to Florida. Consequently, the Court will examine 

whether Plaintiffs have sufficiently alleged either general or specific jurisdiction. 

1. General Jurisdiction

Based on the allegations in the First Amended Complaint, Plaintiffs have failed to establish

that this Court has general jurisdiction over the Defendant. Florida’s long-arm general jurisdiction 

statute provides, “[a] defendant who is engaged in substantial and not isolated activity within this 

state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the 

jurisdiction of the courts of this state, whether or not the claim arises from that activity.” Fla. Stat. 

§ 48.193(2). “It is clear that a very high threshold must be met in order for general jurisdiction to 

be exercised over a nonresident defendant in Florida.” Pathman v. Grey Flannel Actions, Inc., 

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741 F. Supp. 2d 1318, 1323 (S.D. Fla. Oct. 1, 2010) (citing Helicopteros Nactionales de Colombia, 

S.A. v. Hall, 466 U.S. 408, 414 (1984)); see also Estate of Fraser v. Smith, 2007 WL 5007084, at 

*4−6 (S.D. Fla. Nov. 13, 2007) (holding that general jurisdiction in Florida could not be exercised 

over a foreign tour operator whose contact with Florida consisted of purchasing and taking 

delivery of boats; sending two shareholders to negotiate the purchase of the boats; advertising in 

local publications; running an interactive website conducting business; sending an employee to 

attend a five-month course; directing an employee to attend a trade show to promote its tours; 

and entering into commission agreements with Florida corporations and individuals). Here, 

Defendant’s contacts with the State of Florida alone are insufficient to establish general 

jurisdiction over the Defendant. Pernod is a French corporation organized under foreign law; its

principal place of business is located at 12 Place des Etats-Unis, 75783 Paris Cedex 16, France. 

And while Pernod is a foreign publicly traded company that, through its subsidiaries (including but 

not limited to Pernod Ricard USA, LLC, a Delaware LLC), does business in the State of Florida, 

Pernod does not maintain a registered agent in the State of Florida. [DE 22 at para. 4].

Plaintiffs assert that Pernod USA LLC’s activities within the State of Florida, meet the 

“substantial and not isolated activity within this state” requirement necessary to satisfy Florida’s 

general jurisdiction long-arm statute. Plaintiffs contend that those activities may be imputed to 

the Defendant Pernod because Pernod Ricard USA LLC is the alter ego of Pernod Ricard. [DE 

33 at 3, 6]. To support their alter-ego claim, Plaintiffs assert:

1. Pernod Ricard USA, LLC is registered to transact business in Florida, but has a mailing 

address of PERNOD RICARD LEGAL DEPARTMENT, 250 Park Avenue, 17th Floor, 

New York, NY 10177;

2. Pernod Ricard USA, LLC produces, imports and markets spirits and wines that it 

supplies throughout the United States;

3. Pernod Ricard USA, LLC’s website has a link to Pernod Ricard Global, which redirects 

to Pernod Ricard of France, with the same logo as Pernod Ricard USA, LLC;

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4. 28% of Pernod Ricard’s overall sales come from the United States, and Pernod Ricard 

“touts” Pernod Ricard USA, LLC operation in its investment procurement material; 

5. Defendant Pernod assigns employees to work at Pernod Ricard USA, LLC, including 

the Finance Director and CFO of Pernod Ricard USA.

[DE 33 at 6−8]. For the following reasons, the Court finds that these allegations are insufficient 

to support Plaintiffs’ alter-ego argument.

Those who seek to pierce the corporate veil in Florida carry a “very heavy burden.” Gov’t 

of Aruba v. Sanchez, 216 F. Supp. 2d 1320, 1362 (S.D. Fla. 2002). Under Florida law, to pierce 

the corporate veil under an alter-ego theory, the plaintiff must establish “both that the corporation 

is a ‘mere instrumentality’ or alter ego of the defendant, and that the defendant engaged in 

‘improper conduct’ in the formation or use of the corporation.” WH Smith, PLC v. Benages & 

Associates, Inc., 51 So.3d 577, 581 (Fla. Dist. Ct. App. 2010) (emphasis in original) (quoting 

Bellairs v. Mohrmann, 716 So.2d 320, 323 (Fla. 2d DCA 1998)). When plaintiffs fail to “meet their 

burden of proving that an alter-ego relationship was maintained for an improper purpose,” they 

cannot obtain personal jurisdiction over a defendant on the theory of alter ego. McFadden Ford, 

Inc. v. Mancuso ex rel. Mancuso, 766 So.2d 241, 243 (Fla. Dist. Ct. App. 2000); Hobbs v. Don 

Mealey Chevrolet, 642 So.2d 1149, 1156 (Fla. Dist. Ct. App. 1994) (“Without evidence that 

AFSLIC was formed or used for some illegal, fraudulent, or other unjust purpose, the mere fact of 

American Way Group’s and Warmus’s ownership and control of AFSLIC was insufficient to justify 

piercing AFSLIC’s corporate veil.”).

However, at the motion to dismiss stage, a plaintiff need only allege facts which support a 

plausible basis for alter ego as a theory of liability. See Georgetown Trading Co., LLC v. Venturi 

Spirits, LLC, No. 14-62277-CV, 2015 WL 11197790, at *2 (S.D. Fla. Mar. 16, 2015) (finding 

allegations that the defendants directed and controlled the alleged alter ego, which were made 

only “on information and belief,” were sufficient to survive a motion to dismiss). To do so, a plaintiff 

must allege: (1) the shareholder dominated and controlled the corporation to such an extent that 

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the corporation’s independent existence was in fact non-existent and the shareholders were in 

fact alter egos of the corporation; (2) the corporate form must have been used fraudulently or for 

an improper purpose; and, (3) the fraudulent or improper use of the corporate form caused injury 

to the claimant. Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1349 (11th Cir. 2011) 

(quoting Gasparini v. Pordomingo, 972 So.2d 1053, 1055 (Fl. Dist. Ct. App. 2008)). “It is not 

necessary that the party seeking to pierce the corporate veil [allege] all of the factors, but enough 

of the factors must exist to indicate the necessary degree of control by one company over the 

other to constitute an alter ego relationship.” Eitzen Chem. (Singapore) PTE, Ltd. v. Carib 

Petroleum, 749 F. App’x 765, 771 (11th Cir. 2018) (citation omitted). Plaintiffs have not alleged 

the last two of these requirements and thus have failed to set forth allegations that, if proven true, 

would support a finding that Pernod USA is the alter ego of Defendant Pernod.

In addition, assuming arguendo that the Plaintiffs are able to satisfy the general jurisdiction 

requirements of the Florida Long-Arm statute, general jurisdiction over Defendant Pernod still 

would not be established under the facts of this case. The Eleventh Circuit has made clear, “[t]he 

reach of [section 48.193(2)] extends to the limits on personal jurisdiction imposed by the Due 

Process Clause of the Fourteenth Amendment.” Carmouche, 789 F.3d at 1204 (citing Fraser v. 

Smith, 594 F.3d 842, 846 (11th Cir. 2010)). Thus, to determine whether general jurisdiction exists 

over a defendant under section 48.193(2), a court “need only determine whether the district 

court’s exercise of jurisdiction over [the defendant] would exceed constitutional bounds.” Id. “[A]

court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations,” 

without offending due process “when their affiliations with the State are so ‘continuous and 

systematic’ as to render them essentially at home in the forum State.” Carmouche, 789 F.3d at 

1204 (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting 

Int’l. Shoe Co., 326 U.S. at 317)). “[O]nly a limited set of affiliations with a forum will render a 

defendant amenable to all-purpose jurisdiction there.” Daimler AG v. Bauman, 571 U.S. 117, 137

(2014). A corporation’s place of incorporation and its principal place of business are “paradigm 

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all-purpose forums.” Id. But, “a corporation’s operations in a forum other than its formal place of 

incorporation or principal place of business” will be “so substantial and of such a nature as to 

render the corporation at home in that State” only in “exceptional” cases. Id. at 139 n.19.6

In Daimler, the Supreme Court, examined the plaintiffs’ attempt to establish general 

jurisdiction over a foreign corporate defendant based upon the agency theory that its subsidiary 

had sufficient contacts with California for jurisdiction to attach.7 In particular, the Court held that 

California courts could not exercise general personal jurisdiction over a German company with a 

wholly-owned subsidiary that did business in California. Daimler, 571 U.S. 117. The Court 

explained that California courts could not exercise general personal jurisdiction over the parent 

company even if the subsidiary’s contacts with California were “imputable” to the parent. Id. at 

136. The Court reached this conclusion even though the company’s subsidiary was the largest 

supplier of luxury vehicles to the California market and accounted for 2.4% of the parent’s 

worldwide sales. Id. at 123. Notably, neither the defendant foreign corporation nor its subsidiary 

were incorporated in California, nor had their principal place of business there. Id. at 139.

6 The only “exceptional” case the Supreme Court has identified in which a court exercised general personal 

jurisdiction over a foreign corporation without offending due process is Perkins v. Benguet Consol. Min. 

Co., 342 U.S. 437 (1952). In Perkins, a Philippines mining company ceased its mining operations during 

the Japanese occupation of the Philippines in World War II. 342 U.S. at 448. The president of the company 

moved to Ohio, where he kept an office and oversaw the work of the company. Id. The Supreme Court 

held that Ohio courts could exercise general jurisdiction over the company without offending due process.

Id. In so doing, the Court explained that in Perkins, “Ohio was the corporation’s principal, if temporary, 

place of business,” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779 n.11 (1984), and that “[g]iven the 

wartime circumstances, Ohio could be considered a surrogate for the place of incorporation or head office,” 

Daimler, 571 U.S. at 130 n.8 (internal quotation marks and citation omitted).

7 The Court recognizes that Plaintiffs have advanced an alter-ego theory, rather than an agency theory. 

However, under Florida law, an agency relationship is predicated on the parent’s control of the subsidiary: 

“[T]he parent corporation, to be liable for its subsidiary’s acts under the . . . agency theory, must exercise 

control to the extent the subsidiary manifests no separate corporate interests of its own and functions solely 

to achieve the purposes of the dominant corporation.” In re Chinese-Manufactured Drywall Products 

Liability Litigation (Drywall II), 753 F.3d 521, 529 (5th Cir. 2014) (citing Enic, PLC v. F.F.S. & Co., Inc., 870 

So.2d 888, 891 (Fla. Dist. Ct. App. 2004)). This control-focused inquiry overlaps with the alter-ego test 

adopted by most circuits. Id. (citing Daimler, 571 U.S. at 134−35) (noting that several Courts of Appeals 

impute jurisdictional contacts “when the former is so dominated by the latter as to be its alter ego.”). 

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Thus, a foreign corporation cannot be subject to general jurisdiction in a forum unless the 

corporation’s activities in the forum closely approximate the activities that ordinarily characterize 

a corporation’s place of incorporation or principal place of business. Accordingly, even if Plaintiff 

had sufficiently alleged the Pernod USA was the alter ego of Defendant Pernod for purposes of 

satisfying Florida’s long-arm requirement of “substantial and not isolated activity” in the state, 

Pernod’s connections with Florida are not “so ‘continuous and systematic’ as to render [it] 

essentially at home” here. Goodyear, 564 U.S. at 919 (quoting Int’l Shoe Co., 326 U.S. at 317); 

Daimler, 571 U.S. at 139 n.19. As such, Plaintiffs are unable to establish general jurisdiction over 

Pernod.

2. Specific Jurisdiction 

The Court next examines whether Plaintiffs have sufficiently alleged specific jurisdiction 

based on Defendant’s actions within Florida that relate to the Plaintiffs’ cause of action.8 Section 

(1)(a) of Florida’s long-arm statute lists those acts that will subject a defendant to specific personal 

jurisdiction—that is, jurisdiction over suits that arise out of or relate to a defendant’s contacts. Fla. 

Stat. § 48.193(1)(a).9

 In addition, the statute expressly provides a defendant’s contacts may be 

8 The First Amended Complaint is silent as to what type of jurisdiction Plaintiffs seek to establish. However, 

as correctly noted by Defendant, in response to the Motion to Dismiss, Plaintiffs seemingly argue that the 

Defendant is subject to the Court’s general jurisdiction but do not cite the relevant Florida long-arm statute 

provisions. As such, and out of an abundance of caution, the Court also evaluates whether the Complaint

establishes specific jurisdiction over the Defendant.

9 Fla. Stat. § 48.193 provides, in relevant part:

(1)(a) A person, whether or not a citizen or resident of this state, who personally or through an agent does 

any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural 

person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action 

arising from any of the following acts:

1. Operating, conducting, engaging in, or carrying on a business or business venture in this 

state or having an office or agency in this state.

2. Committing a tortious act within this state.

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based not only on the defendant’s personal activities, but also on the actions of the defendant’s 

agents. See id. 

To the extent that Plaintiffs propose Defendant is subject to specific personal jurisdiction, 

the Complaint fails to adequately allege facts to establish such jurisdiction. As previously stated, 

in the Complaint, Plaintiffs do not specify which of the Florida long-arm sections, if any, they rely 

upon to establish specific jurisdiction over the Defendant. Thus, the Court is unable to assess 

whether any of the subsections are applicable to Pernod. 

It should be noted that subsection 48.193 (1)(a)(1), of the Florida long-arm statute 

provides that specific jurisdiction may apply to a defendant who is “operating, conducting, 

engaging in, or carrying on a business venture in this state or having an office or agency in this 

state,” if the cause of action arises from those acts. But, again, Plaintiffs do not contend that 

Defendant Pernod itself engages in activities within the State of Florida to establish specific 

jurisdiction over that entity. Rather, Plaintiffs contend that jurisdiction can be established through 

its wholly-owned subsidiary, Pernod USA. Therefore, the Court must determine whether 

Defendant Pernod, through its alleged agent, Pernod USA, was “operating, conducting, engaging 

in, or carrying on a business venture” in Florida, and whether the business venture had a 

substantial connection to the cause of action in this case.

3. Owning, using, possessing, or holding a mortgage or other lien on any real property within 

this state

. . .

6. Causing injury to persons or property within this state arising out of an act or omission by 

the defendant outside this state, if, at or about the time of the injury, either:

a. The defendant was engaged in solicitation or service activities within this state; or

b. Products, materials, or things processed, serviced, or manufactured by the defendant 

anywhere were used or consumed within this state in the ordinary course of commerce, 

trade, or use.

7. Breaching a contract in this state by failing to perform acts required by the contract to be 

performed in this state.

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The same allegations that Plaintiffs advance regarding the exercise of general jurisdiction 

based upon Plaintiffs’ alter-ego theory should arguably support any contention that Defendant 

Pernod was “operating, conducting, engaging in, or carrying on a business venture” through 

Pernod USA, and that those activities give rise to Plaintiffs’ cause of action. However, Plaintiffs 

merely advance the conclusory assertion of alter ego, while giving only a general description of 

what business Pernod USA conducts. [DE 22 at 2−3]. Although Plaintiffs provide a few details 

regarding the parent-subsidiary relationship between Defendant Pernod and Pernod USA, that is 

the extent of Plaintiffs’ allegations describing their relationship and, more specifically, Defendant’s 

potential acts within Florida. Since Plaintiffs have failed to allege sufficient facts to support this 

argument or even include allegations invoking specific jurisdiction in the Complaint, jurisdiction

cannot be established on this basis.

Further, specific jurisdiction may be exercised over a foreign defendant in Florida where 

a claim arises from a defendant’s commission of “a tortious act within [the] state.” Fla. Stat. 

§ 48.193(1)(a)(2). And, “[i]ntentional torts . . . 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) (citing Calder v. Jones, 465 U.S. 783, 790 (1984)). 

Nonetheless, Plaintiffs have failed to allege that Defendant, or its agent, committed a tortious act 

in Florida by selling or distributing the Havana Club, or to cite to the applicable Florida long arm 

statute. Thus, Plaintiffs have not adequately alleged that Defendant committed an intentional tort 

to establish jurisdiction.

Moreover, even if the specific jurisdiction long arm statute were satisfied, as with general 

jurisdiction, “the due process clause of the United States Constitution protects an individual’s 

liberty interest in not being subject to the binding judgments of a forum with which he has 

established no meaningful ‘contacts, ties, or relations.’” Licciardello, 544 F.3d at 1284 (quoting 

Int’l Shoe Co., 326 U.S. at 319). To determine whether the exercise of specific jurisdiction affords 

due process, the Eleventh Circuit applies a three-part test. Louis Vuitton Malletier, S.A. v. 

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Mosseri, 736 F.3d 1339, 1355 (11th Cir. 2013). First, courts consider whether plaintiffs have 

established that their claims “arise out of or relate to” at least one of the defendant’s contacts with 

the forum. Id. (internal quotation marks omitted). Second, courts determine whether plaintiffs 

have demonstrated that defendant “purposefully availed” itself of the privilege of conducting 

activities within the forum state. Id. (internal quotation marks omitted). If the plaintiffs carry their 

burden of establishing the first two prongs, a court next considers whether the defendant has 

“ma[de] a compelling case that the exercise of jurisdiction would violate traditional notions of fair 

play and substantial justice.” Id. (internal quotation marks omitted).

Plaintiffs have failed to address any of these issues in response to the Motion to Dismiss, 

and the Complaint fails to provide allegations for the Court to assess whether specific jurisdiction 

requirements could be met in this case. As such, the Court concludes that Plaintiffs have failed 

to establish that Defendant Pernod is subject to specific jurisdiction in this case. The Court,

however, grants Plaintiffs leave to file a Second Amended Complaint to advance allegations to 

establish specific jurisdiction, if appropriate.

B. Subject Matter Jurisdiction 

Defendant contends that the Court lacks subject matter jurisdiction over this matter 

because Plaintiffs lack standing. Specifically, Defendant contends that Plaintiffs’ injuries were not 

the result of Defendant’s actions and that Plaintiffs cannot establish causation.

This argument fails, however, because Defendant misapprehends the nature of Plaintiffs’ 

cause of action. The injury for which Plaintiffs seek to be compensated is not the Cuban 

Government’s confiscation of Cueto’s property in Cuba, but rather the proceeds obtained by a 

third party, in this case Pernod, who allegedly intentionally and knowingly trafficked in that 

confiscated property. Thus, Defendant’s contention that it was not complicit in the 1963 taking by 

the Cuban Government or has not been empowered to return the property [DE 30 at 24] is not 

relevant. 

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The Act provides a cause of action for U.S. nationals against those entities who knowingly 

traffic in confiscated property. In other words, an entity or person need not be complicit in the 

taking of the property at issue to be found liable for money damages under the Act. See Glen v. 

Club Mediterranee, S.A. 450 F.2d 1251, 1256 (11th Cir. 2006) (stating purpose of Act is to provide 

a statutory remedy to U.S. nationals who were the victims of the confiscation and to deny 

traffickers any profits from economically exploiting those wrongful seizures.). Defendant asserts

that Pernod’s commercial activities with Corporación Cuba Ron S.A. are not the cause of 

Plaintiffs’ injury given that the commercial activity occurred with a different product and brand 

name nearly thirty years after the alleged illegal taking. [DE 30 at 25]. This argument is unavailing

because Plaintiffs’ sole cause of action is not based on whether Defendant participated in the 

illegal taking but whether they knowingly and intentionally trafficked in the confiscated property in 

which Plaintiffs hold an interest. Additionally, Plaintiffs allege that Cueto’s intellectual property 

was taken, so Defendant’s assertion that the product is different after thirty years—even if true—

is not sufficient to defeat these allegations. 

This issue was addressed in Havana Docks Corp. v. Norwegian Cruise Line Holdings, 

LTD., No. 19-cv-23591 (S.D. Fla.), where the court granted a motion for reconsideration of its 

earlier dismissal of a Helms-Burton Act action. See Havana Docks Corp. v. Norwegian Cruise 

Line Holdings, LTD., No. 19-cv-23591, ECF No. 53 (S.D. Fla. April 15, 2020). The Court explained 

that the liability of the defendant under the Act was based upon Congress’ determination that 

trafficking in confiscated property by foreign investors undermines the foreign policy of the United 

States to protect claims of United States nationals who had property wrongfully confiscated by 

the Cuban Government. Id. at 21. The Court noted that in enacting the Act, Congress intended 

to create a chilling effect that would discourage third-country nationals from seeking to profit from 

illegally confiscated property. Id. Thus, while the Court did not expressly examine whether the 

defendant’s activities in that case had caused actual injury to the plaintiff, implicit in the Court’s 

ruling was the determination that the defendant could be liable to the plaintiff under the statute for 

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trafficking in the confiscated property, even if the defendant was not involved in the initial taking. 

Notably, the Court stated that the issue of the amount of compensation that the plaintiff was 

entitled to recover (the injury amount) was entirely distinct from the issue of the trafficking that 

created liability under the Act. See Havana Docks, Case No. 19-cv-23591, ECF No. 53 at 26. 

Ultimately, the Court vacated its order granting the defendant’s motion to dismiss. Like the plaintiff 

in Havana Docks, Plaintiffs’ standing here is predicated on their claim that they hold an interest in 

the confiscated property that was the subject of dealings between Defendant and the Cuban 

Government. 

Defendant also asserts that there are no allegations in the Complaint that Pernod trades 

in Conac Cueto products, benefits from Conac Cueto’s intellectual property or that the Cueto 

family has any rights in the rum products Pernod produces in Cuba [DE 30 at 24, 25]. The 

Complaint does allege that the intellectual property of Conac Cueto was used in the production 

and sale of Havana Club brand and line of products.10 The Complaint also alleges that Defendant 

owns rights in the brand Havana Club [DE 22 at 2] and further alleges that beginning in 1993, 

Defendant “commenced conducted, promoted and distributed its Havana Club brand and line of 

products worldwide using the Subject Property by using the assets and intellectual property of the 

Subject Property” and “participated and profited from the communist Cuban Government’s 

possession of the Subject Property.” [DE 22 at 6]. Therefore, Plaintiffs allege that Defendant 

used Cueto property in its product distribution. These allegations are sufficient to establish 

Plaintiffs’ standing as an injured party due to, as discussed below, the Defendant’s trafficking 

actions.

10 Defendant states that Plaintiffs allege that the intellectual property of Cueto was used in the production 

and sale of Havana Club rum [DE 30 at 25], but the Complaint alleges that intellectual property of the 

subject property was used in the distribution of the Havana Club brand and line of products worldwide. [DE 

22 at 6]. Thus, the Complaint does not limit the use of intellectual property to the Havana Club rum products.

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C. Failure to State a Claim Under the Act

Defendant contends that Plaintiffs have not alleged plausible allegations that Pernod 

transacts in property expropriated from the Cueto Family and have not sufficiently alleged that 

the Defendant knowingly and intentionally trafficked in the confiscated property at issue [DE 30 

at 26−31]. Under the Act, “a person ‘traffics’ in confiscated property if that person knowingly and 

intentionally . . . engages in a commercial activity using or otherwise benefiting from confiscated 

property.” 22 U.S.C. § 6023(13). In the Complaint, Plaintiffs allege that Pernod “knowingly and 

intentionally commenced, conducted, promoted and distributed its Havana Club brand and line of 

products worldwide using the Subject Property by using the assets and intellectual property of the 

Subject Property without authorization of Plaintiffs” and “knowingly and intentionally participated 

in and profited from the communist Cuban Government’s possession of the Subject Property 

without the authorization of Plaintiff.” [DE 22 at 6]. Plaintiffs further allege that Defendant 

knowingly and intentionally engaged in conduct with regard to the subject property that meets the 

definition of trafficking under the Act. [DE 22 at 7]. Additionally, Plaintiffs cite to Cuban 

newspapers that reported on the Cuban Government’s confiscation of various areas of private 

property, including rum and alcohol companies, and argue that those articles were sufficient to 

alert Pernod that the subject property had been confiscated when Defendant started to do 

business with the Cuban Government. [DE 22 at 7]. Finally, Plaintiffs contend that the markings 

on the seized property, including barrels and other materials, gave or should have given 

Defendant reason to know that the property was owned by Cuban citizens. [DE 22 at 7].

These allegations distinguish the case at bar from Gonzalez v. Amazon.com, Inc., 2020 

WL 1169125 (S.D. Fla. March 10, 2020), which Defendant cites in its Motion to Dismiss. In 

Gonzalez, the Court granted the defendant’s motion to dismiss finding that the plaintiff failed, 

among other things, to sufficiently allege that the defendant knowingly and intentionally trafficked 

in confiscated property. Id. at *2. Specifically, the Court concluded that the complaint only offered 

conclusory allegations about the defendant’s actions and failed to put forth allegations that would 

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demonstrate the defendant’s knowledge that it was trafficking in confiscated property. Id. See

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007) (conclusory allegations cannot survive 

a motion to dismiss); see also Ruiz v. Experian Information Solutions, Inc., 2017 WL 1378242, at 

*2 (S.D. Fla. Apr. 14, 2017) (conclusory allegation of knowledge is not sufficient to satisfy the 

scienter requirement). 

Here, the Complaint alleges that Defendant knowingly and intentionally conducted 

business—i.e. trafficked with the Cuban government—related to the Havana Club brand even 

though Defendant knew or should have known, because of the publication in Cuban newspapers

and the markings on the materials, that the Cuban government had wrongfully confiscated such 

property from Cuban citizens. Plaintiffs, therefore, have alleged the requisite scienter sufficient 

to survive the Motion to Dismiss. To the extent that Defendant contests the veracity of those 

allegations, such determinations are “inappropriate in deciding a motion to dismiss,” GarciaBengochea v. Carnival Corp., 407 F. Supp. 3d 1281, 1284 (S.D. Fla. 2019) (citing Twin City Fire 

Ins. Co. v. Hartman, Simons & Wood, LLP, 609 F. App’x 972, 977 (11th Cir. 2015)), and 

Defendant’s motion is denied on this ground.

Defendant also argues Plaintiffs have not pled ownership of a claim to property 

confiscated by the Government of Cuba. Instead, Plaintiffs have alleged that they have inherited 

100% of the Cuban business entity, and the entity cannot bring a claim under the Act because 

the entity is not a U.S. national. [DE 30 at 29−30]. Defendant contends, “[w]hile the Cuban 

corporation Conac Cueto certainly may be said to possess a claim against the government of 

Cuba for its expropriated Cuban assets, it may not assert it under Title III” because the entity was 

organized under the laws of Cuba and therefore does not qualify as a corporate “national of the 

United States.” [DE 30 at 30]. That is, the “claim is not owned by a U.S. national, and Title III 

explicitly limits the availability of its civil remedy to the claims of U.S. nationals.” Id. 

The Defendant fails to cite any case law to support its proposition but instead relies on the 

pre-enactment testimony of a member of the House of Representatives, and argues that a United 

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States citizen must already own the claim to the confiscated property on March 12, 1996, when 

the Act was passed. Thus, Defendant contends that in order for Plaintiffs to hold an actionable 

claim, Cueto would have had to set up a U.S. subsidiary or affiliated entity in the United States 

and have transferred the claim to that entity. [DE 30 at 30]. 

Similar arguments were rejected by the Court in Garcia-Bengochea where the Court 

described the defendant’s argument for dismissal as follows:

Carnival argues that even if Plaintiff did acquire ownership of Parreno’s certified 

claim, Plaintiff still does not own a “direct interest” in the confiscated property 

because “the claim concerns stock in [La Maritima], which in turn owned the 

docks.” In Carnival’s view, this requires dismissal because, “[a]s a matter of 

corporate law, Plaintiff does not own a claim to the docks themselves.” And 

because La Maritima “is not a United States national capable of bringing a HelmsBurton claim,” Carnival says Plaintiff cannot save his case by attempting to bring 

the action on behalf of the company. 

407 F. Supp. 3d at 1285 (internal citations omitted). The Court concluded that such an 

interpretation would undermine Congress’ goal of deterring trafficking and yield an untenable 

result: any corporation that was nationalized by the Cuban Government once it was confiscated 

(as Plaintiffs allege occurred in this case) would not qualify as a U.S. national capable of bringing 

a Helms-Burton claim, nor would any person who held an interest in that Cuban entity qualify. If 

true, virtually no one could bring an action under the Act. Id. at 1290.

The Court agrees with the rationale advanced in Garcia-Bengochea and concludes that 

Plaintiffs’ allegation that they have—albeit through an alleged inheritance—a claim to property 

once owned by a corporation confiscated by the Cuban Government is sufficient to survive a 

motion to dismiss. Moreover, whether Plaintiffs actually own the Cueto property as asserted in 

the Complaint involves factual determinations that go beyond the four corners of the current 

pleading. Specifically, the Court notes that although the Court found the plaintiff’s allegations 

regarding its claim in Garcia-Bengochea sufficient to survive a motion to dismiss, the Court 

subsequently entered judgment for the defendant on the amended pleadings, finding that in order 

to advance a viable claim under the Act, a United States citizen must already own the claim to 

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the confiscated property on March 12, 1996, when the Act was passed. See Garcia-Bengochea

v. Carnival Corp., No.19-cv-21725, ECF No. 120 (S.D. Fla. July 9, 2020). There, undisputed 

exhibits attached to the defendant’s amended pleadings showed the plaintiff inherited his claim 

under a will executed in January 2000. Therefore, while the Court finds Plaintiffs have sufficiently 

pled an interest in the subject property at this stage of the proceedings, factual questions remain 

regarding Plaintiffs’ actual interest in the property, and when and how they acquired it.

11

D. Service of Process

Defendant finally argues that Plaintiffs failed to properly serve Pernod with this action. 

Rule 12(b)(5) permits a court to dismiss a case for insufficient service of process. Fed. R. Civ. P. 

12(b)(5). Initially, a defendant has the burden of challenging the sufficiency of service and “must 

describe with specificity how the service of process failed to meet the procedural requirements of 

Fed. R. Civ. P. 4.” Hollander v. Wolf, No. 09-cv-80587, 2009 WL 3336012, at *3 (S.D. Fla. Oct. 

14, 2009); accord Developers Surety and Indemnity Co. v. Italian Cast Stone, Inc., No. 8:16-cv3491T-24-TGW, 2017 WL 3113469, at *2 (M.D. Fla. May 5, 2017). Once a defendant meets its

burden, the burden shifts to the plaintiff to prove a prima facie case of proper service of process.

11 The Complaint alleges that Plaintiffs’ interest accrued when the founder of Cueto passed away on 

December 9, 1979, [DE 22 at para. 27]. But should Plaintiffs file a Second Amended Complaint and this 

action proceed, Plaintiffs face the burden of proving whether the interest indeed belongs to Plaintiffs and 

was transferred or vested prior to the March 12, 1996 cutoff specified in the Act. Section 6082(a)(4)(B) 

provides:

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)(4)(B). It should be noted that Plaintiffs appear to anticipate this issue in a footnote in 

the Amended Complaint:

[N]o lawyer within the Cuban government would allow Mr. Cueto to draft a will leaving his 

stolen property to his wife or children as such lawyers were agents of the State and under 

orders that such theft was lawful as part of Castro’s attempt to institute a communist regime 

in the former capitalist regime of Cuba. 

[DE 22 at 5 n.1].

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Id. The plaintiff makes a prima facie showing of proper service by presenting a signed return of 

service. Martinez v. Deutsche Bank Nat’l Trust Co., No. 5:11-cv-580-Oc-10TBS, 2012 WL 

162360, at *2 (M.D. Fla. Jan. 19, 2012). If the plaintiff can establish that service was proper, the 

burden shifts back to the defendant to “bring strong and convincing evidence of insufficient 

process.” Developers, 2017 WL 3113469 at *2 (citation omitted). “The Court may look to 

affidavits, depositions, and oral testimony to resolve disputed questions on fact.” Hollander, 2009 

WL 3336012, at *3 (citations omitted).

Defendant contends that Plaintiffs failed to properly serve Pernod in France in compliance 

with Fed. R. Civ. P. 4(h)(2), which requires that the procedures in 4(f) be followed. Specifically, 

Defendant asserts that although, pursuant to 4(f)(1), Plaintiffs are authorized to serve the 

Defendant by any internationally agreed means of service that is reasonably calculated to give 

notice, Plaintiffs failed to adhere to Article 654 of the French Nouveau Code de Procédure Civile

(Code of Civil Procedure) in effecting that service. [DE 30 at 32]. Defendant argues that Article 

654 requires that service of process on a corporate entity meet the requirement that process be 

personal when the process is delivered to its legal representative, to the latter’s proxy or to any 

person empowered for this purpose. Id. In support of its contention, Pernod has submitted the 

Declaration of Antoine Brocas, the Group Corporate Affairs Director and Secretary of the Board 

at Pernod Ricard, S.A. [DE 30-1]. In the Declaration, Brocas states that on February 25, 2020, 

a hussier de justice came to Pernod’s office in Paris and delivered a non-delivery notice by leaving 

it with the attendant at the welcome desk. Mr. Brocas states that the employee who was handed 

the notice is not a legal representative of Pernod, nor is that individual authorized to accept service 

of process for Pernod. [DE 30-1 at para. 7]. 

Plaintiffs have not submitted an affidavit to directly contradict the statements made in the 

Declaration, but instead point to a previously filed motion where Plaintiffs requested that the Court 

deem service had been made on the Defendant. [DE 11]. Although that motion was denied 

without prejudice because Plaintiffs failed to serve the motion on Defendant, attached to the

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motion is a communication from the process server in France which states that service had been 

made properly under French law pursuant to Article 656. [DE 11-7 at 1]. In addition, Plaintiffs 

submitted a translation of a document that states that the hussier de justice confirmed the address 

and that service was attempted but was impossible because there was no one at the address

capable of or agreeing to accept the Complaint. [DE 11-6 at 1]. The statement then cites Article

656 of the Code and has the name and seal of an Associate Bailiff. [DE 11-6 at 1]. Plaintiffs 

assert that Article 656 provides, inter alia, that if no one may or is willing to receive process at the 

address, then after inquiry to confirm the address, the bailiff may deposit a copy of the process at 

city hall or deliver a non-delivery notice to the address of the residence. The corporation then has 

three months in which to collect the process. [DE 33 at 11]. Plaintiffs contend that this was the 

procedure that was followed.

Defendant replied, reiterating that Article 654 applies and that Plaintiffs failed to comply

with this specific provision [DE 34 at 14]. Defendant further contends that although Plaintiffs argue

compliance with Article 656, they fail to provide any support for the notion that the individual who 

could potentially accept service of process was absent and that service was refused (Defendant 

questions how service could have been attempted on an unnamed individual when the service of 

process was addressed solely to S.A. Pernod Ricard).

The Court finds that service was perfected under these facts. As Plaintiffs met their prima 

facie case by filing a return of service, Defendant has failed to demonstrate how Plaintiffs failed 

to comply with the dictates of Rule 4. Defendant concedes that in France, service can be made 

via the French Central Authority or by a hussier de justice as provided by the French Code of Civil 

Procedure. [DE 30 at 32].12 Although Defendant points to and relies exclusively on the 

12 Defendant states that Plaintiffs sought to have the Court declare the validity of service of process and 

that the Court deemed Pernod served before Pernod had an opportunity to respond [DE 30 at 32]. 

However, the docket reflects that Plaintiffs’ Corrected Motion to Deem Defendant Served [DE 11], was 

denied with leave to renew based on the failure to properly serve the Defendant with the motion. [DE 13]. 

Plaintiffs did not renew the motion, and Defendant instead filed its original Motion to Dismiss.

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requirements of one Article in the Code of Civil Procedure, Defendant does not dispute Plaintiffs’ 

contention that another Article under the Code is equally applicable to this case. Nor does 

Defendant dispute that if Plaintiffs’ allegations regarding service are true, i.e., that no one would 

accept service at the Defendant’s address, service was perfected by the hussier de justice. 

Instead, Defendant questions whether service at the corporation’s address was actually 

attempted, notwithstanding Plaintiffs’ documentation to the contrary. Thus, Defendant has not 

shown “strong and convincing evidence” of insufficient process, and Defendant’s Motion to 

Dismiss on this basis is denied. 

E. Discovery

Plaintiffs have requested that instead of granting the Motion to Dismiss, the Court grant 

Plaintiffs leave to conduct brief jurisdictional discovery. [DE 33 at 1-2]. Defendant argues that 

Plaintiffs are not entitled to discovery because there are no facts that could be discovered that 

would ever establish that this Court has jurisdiction over Pernod for this claim, or ostensibly any 

claim under the Act. 

“[F]ederal courts have the power to order, at their discretion, the discovery of facts 

necessary to ascertain their competency to entertain the merits.” Eaton v. Dorchester Dev., Inc., 

692 F.2d 727, 729 (11th Cir. 1982). “[J]urisdictional discovery is favored where there is a genuine 

dispute concerning jurisdictional facts necessary to decide the question of personal jurisdiction; it 

is not an unconditional right that permits a plaintiff to seek facts that would ultimately not support 

a showing of personal jurisdiction.” In re Takata, 396 F. Supp. 3d 1101, 1156 (S.D. Fla. 2019) 

(citing Bernardele v. Bonorino, 608 F. Supp. 2d 1313, 1321 (S.D. Fla. 2009)). 

However, courts have denied requests for jurisdictional discovery where the plaintiff has 

merely requested to conduct discovery in an incidental fashion and where the plaintiff fails to 

sufficiently explain what facts or even what type of facts they wish to discover if given the 

opportunity. See Hinkle v. Cirrus Design Corp., 775 F. App’x 545, 550 (11th Cir. 2019) (citing 

United Techs. Corp. v Mazer, 556 F.3d 1260, 1280–81 (11th Cir. 2009)) (“We have upheld a . . .

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decision to deny ‘requests’ for jurisdictional discovery when a party ‘buried such requests in its 

briefs,’ instead of presenting them in a motion.”). Such is the case here. Plaintiffs request

jurisdictional discovery as an alternative to granting Defendant’s Motion to Dismiss but do not 

sufficiently explain the type of discovery they seek to conduct or the facts that they hope to 

discover that would be sufficient to establish personal jurisdiction over Defendant in this case.

However, while the Court finds that Plaintiffs’ current request to conduct jurisdictional discovery 

falls short of providing sufficient detail for the Court to grant the request, the Court is unwilling to 

state, at this point, that there is no discovery that Plaintiffs could obtain that would support a claim 

for jurisdiction over Pernod.

Accordingly, the Court denies Plaintiffs’ request to conduct jurisdictional discovery without 

prejudice to renew their request. If renewed, the request should specify with particularity what is

sought; the motion shall describe the information that Plaintiffs anticipate obtaining through that 

discovery that would establish that this Court has personal jurisdiction over Defendant Pernod. If

Plaintiffs choose to renew their request for jurisdictional discovery subject to these requirements, 

that request must be made within fourteen (14) days of the date of this Order. 

VI. CONCLUSION

For the reasons set forth above, it is ORDERED AND ADJUDGED that Defendant’s 

Motion to Dismiss [DE 30] is GRANTED, in part, and DENIED, in part. To the extent that 

Defendant’s Motion seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(2), lack of personal 

jurisdiction, the Motion is granted. To the extent that Defendant seeks dismissal based on lack 

of subject matter jurisdiction, improper service, failure to state a claim and any other grounds, the 

Motion is denied. Plaintiffs may file a Second Amended Complaint within fourteen (14) days of 

this Order. 

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DONE and ORDERED in Chambers in Miami, Florida, this 17th day of August, 2020.

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