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.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR

JURISDICTIONAL DISCOVERY AND

TO STAY/EXTEND PLAINTIFFS’ TIME TO RESPOND TO

DEFENDANTS WPP PLC, YOUNG & RUBICAM LLC AND BCW LLC'S

MOTION TO DISMISS

Case 1:20-cv-23287-DPG Document 97 Entered on FLSD Docket 06/15/2021 Page 1 of 20
TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

PROCEDURAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. JURISDICTIONAL DISCOVERY IS APPROPRIATE IN THIS MATTER . . . . 6

II. PLAINTIFFS REQUIRE JURISDICTIONAL DISCOVERY TO REBUT

DEFENDANTS’ CLAIMS THAT THEY ARE NOT SUBJECT TO SPECIFIC

JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. The Plaintiffs are Entitled to Jurisdictional Discovery from BCW . . . . 8

B. The Plaintiffs are Entitled to Jurisdictional Discovery from Y&R . . . 10

III. PLAINTIFFS REQUIRE JURISDICTIONAL DISCOVERY TO REBUT

DEFENDANTS’ ASSERTION THAT DEFENDANTS ARE NOT SUBJECT TO

GENERAL JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

REQUEST FOR HEARING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii

Case 1:20-cv-23287-DPG Document 97 Entered on FLSD Docket 06/15/2021 Page 2 of 20
TABLE OF AUTHORITIES

STATUTES:

Fla. Stat. Ann. § 48.193(1)(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CASES:

Ash v. Royal Caribbean Cruises Ltd.,

No. 13-20619-CIV, 2013 WL 12122147, at *1 (S.D. Fla. June 11, 2013) . . . . . . . . . . . 10

Eaton v. Dorchester Dev., Inc.,

692 F.2d 727 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16

Elardi v. I.S. Makinen Oy,

No. 19-22229-CIV, 2019 WL 6003210, at *2 (S.D. Fla. Nov. 14, 2019) . . . . . . . . 6, 8, 11

Exhibit Icons, LLC v. XP Companies, LLC,

No. 07-80824-CIV, 2008 WL 616104 (S.D. Fla. Mar. 3, 2008) . . . . . . . . . . . . . . . . . . . 14

In re Zantac (Ranitidine) Prod. Liab. Litig.,

No. 20-MD-2924, 2020 WL 6907056 (S.D. Fla. Nov. 24, 2020). . . . . . . . . . . . . . . . . . . . 6

Meier ex rel. Meier v. Sun Int'l Hotels, Ltd.,

288 F.3d 1264 (11th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

N. Am. Sugar Indus., Inc. v. Xinjiang Goldwind Sci. & Tech. Co., Ltd.,

No. 20-cv-22471-DPG-AMO, paperless order (S.D. Fl. Feb. 25. 2021). . . . . . . . . . . . . . 5

Posner v. Essex Ins. Co.,

178 F.3d 1209, 1214 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Storm v. Carnival Corp.,

No. 20-22227-CIV, 2020 WL 7415835 (S.D. Fla. Decl. 18, 2020).. . . . . . . . . . . . . . . . . 15

iii

Case 1:20-cv-23287-DPG Document 97 Entered on FLSD Docket 06/15/2021 Page 3 of 20
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' MOTION FOR JURISDICTIONAL DISCOVERY AND

TO STAY/EXTEND PLAINTIFFS’ TIME TO RESPOND TO DEFENDANTS' WPP PLC,

YOUNG & RUBICAM LLC AND BCW LLC'S MOTION TO DISMISS

Plaintiffs, by and through their attorneys, Berenthal & Associates, P.C. and Rodriguez,

Tramont & Nuñez P.A., respectfully move this Court for leave to take jurisdictional discovery and

to stay/extend Plaintiffstime to respond to Defendants WPP plc (“WPP”), Young & Rubicam, LLC

(“Y&R”), and BCW LLC's (“BCW”) joint motion to dismiss (ECF No. 93) pending completion of

said jurisdictional discovery and, in support thereof, state as follows:

PRELIMINARY STATEMENT

Plaintiffs are the owners of a 90% interest in Ramón Rodriguez e Hijos Sociedad en

Comandita (“RRHSC”). RRHSC was the owner of the Partagas cigarette factory building and a

modern mixed-use building adjacent and connected to said factory at the corner of Calle 23 y 16

(23rd Street and 16

th

)in Havana, Cuba (collectivelythe “Property”). In 1961, the Castro government

confiscated ownership of RRHSC and the Property. Plaintiffs' have alleged that the Property was

used, without compensation to the Plaintiff, no later than January 2008 and until at least October

1

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2020, by defendants Imperial Brands plc (“Imperial”) and Corporación Habanos, S.A. (“Habanos”)

as well as Empresa Comercializadora de Tabaco en Rama “La Vega” a/k/a Tabacuba (“Tabacuba”),

the Cuban monopoly “that integrally directs tobacco activity in all phases of its production chain,

from agriculture to marketing.” 1 Am. Compl. at ¶9 (ECF No. 82). This use included production,

storage and shipping of hand-rolled cigars. Defendant Habanos has confirmed that two entire floors

of the Property are currently used Tabacuba.2 Every leaf of tobacco grown, cultivated, sold and or

marketed in/from to Cuba, is overseen byTabacuba, who uses the Property to conduct its operations.

Plaintiffs further allege that defendants Imperial and Habanos retained WPP through WPP’s U.S.

based subsidiaries, Y&R and BCW to market products produced at the confiscated RRHSCProperty.

Some of this was done through official “portals” on U.S. based social media companies. Plaintiffs

now seek redress against the Defendants for violations of the Helms-Burton Act, as each of the

Defendants have either participated in, or profited from, trafficking of the Property.

Each of the defendants in this matter have moved to dismiss the amended complaint on

varioustheories and there are currently four (4) motions to dismiss pending before the Court. WPP,

Y&R, and BCW's (collectively the “WPP Parties”)joint motion to dismiss (ECF No. 93, hereinafter

referred to as the “Motion to Dismiss”) challenges the Court's jurisdiction over said defendants,

claiming, inter alia, that the Defendants are notsubject to general jurisdiction or specific jurisdiction.

In support of their motion, the WPP Parties attached two declarations, one by Gerald Lombardo, the

1

 “On July 31, 2000, Tabacuba Holding was established as the only economic organization in the

country that integrally directs tobacco activity in all phases of its production chain, from agriculture to

marketing.” http://www.tabacuba.com.cu/en_us/info/nuestra-fortaleza-es-la-herencia/ last visited June 9,

2021¶

2Defendant,Corporación Habanos, S.A.’s Motion to Dismiss, Declaration ofJorgeFernández Núñez

¶5 (ECF No. 89-6).

2

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CFO of BCW, (Declaration of Gerald Lombardo in Support of Defendants' Motion to Dismiss the

Complaint dated April 28, 2021 (“Lombardo Decl.”) (ECF No. 93-1)), and one by Jim

Bellinghausen, the CFO of VMLY&R (Declaration ofJim Bellinghausen in Support of Defendants'

Motion to Dismiss the Complaint dated April 28, 2021 (“Bellinghausen Decl.”) (ECF No. 93-2)). 

A copy of the Motion to Dismiss with the supporting declarations is annexed hereto as Exhibit A.

While press releases and other public records indicate that “Young& Rubicam” and “BCW”

have conducted marketing for Cuban tobacco products3, BCW and Y&R deny that they performed

and such marketing. Instead, BCW and Y&R claim that distinct, foreign sibling corporations (that

are also indirect subsidiaries of WPP plc) had Habanos as a client, and suggest that any marketing

activity must have been conducted by these non-U.S. entities.

Both of the declarations attached to the Motion to Dismiss are conclusory in nature, contain

vagaries and raise questions that Plaintiffs must explore through discovery. Plaintiffs should be

permitted to delve deeper into the questions raised by these declarations, through their own

discovery, in order to properly respond to Defendants' motion to dismiss.

PROCEDURAL BACKGROUND

The instant action was commenced on or about August 6, 2020 with the filing of the

Complaint. ECF No. 1. On August 28, 2020, Defendant Imperial, moved this Court to stay the

instant action to provide Imperial with additional time to obtain permission from the European

3For example, http://www.habanos.com/en/noticias/la-casa-del-habano-celebra-su-30-aniversario/,

a web page on Habanos' website promoting Habanos tobacco products, displays Burson Cohn & Wolfe's

name as a contact for additional information. Similarly, the “contacts” webpage for Habanos' twenty second

cigar festival, located at https://www.festivaldelhabano.com/contact.htm lists “YOUNG & RUBICAM” as

one of its contacts.

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Commission to defend against the litigation, ECF No. 14. Although the WPP Parties were not

burdened with the task of obtaining permission from the European Commission to defend against

the instant action, the WPP Parties joined in Imperial's request and moved this Court to stay the

action against the WPP Parties pending the Court's determination of Imperial's motion for a stay.

ECF No. 26. The Court granted the defendants'motions and the action was stayed for over 140 days,

until February 12, 2021, when the stay was lifted.

On February9, 2021, Imperial and the WPP Parties filed their unopposed motion for an order

setting forth a briefing schedule for defendants' anticipated motions to dismiss the Complaint. ECF

No. 65. The Court granted the motion, (ECF No. 68), and defendants were directed to file their

motions to dismiss by February 26, 2021, Plaintiffs were to file their responses by March 26, 2021,

and defendants were to file their replies by April 10, 2021.

Defendantsfiled their respective motions to dismiss on February26, 2021, and on March 23,

2021, Plaintiffs filed their Amended Complaint. ECF No. 82. The Court subsequently denied

defendants' motions to dismiss as moot in light of the amended complaint. ECF No. 84.

On March 30, 2021, Defendants filed a new, unopposed motion for an order setting forth a

briefing schedule for defendants' anticipated motions to dismiss the amended complaint, (ECF No.

86), which was also granted by the Court (ECF. 87). Pursuant to the new scheduling order,

Defendants were to file their motions to dismiss by April 28, 2021, Plaintiffs were to file their

responses by May 28, 2021, and Defendants were to file their replies by June 15, 2021.

Defendantsfiled a total of four motions to dismiss on April 28, 2021. ECF No2. 88, 89, 91,

and 93. On May 26, 2021, Plaintiffs filed their unopposed motion amending the briefing schedule

and extending Plaintiffs time to respond to the motions to June 17, 2021. ECF No. 95. Said motion

4

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was granted by the court on May 28, 2021.

On June 3, 2021, Plaintiffs’ counsel, via e-mail, contacted defendants' counsel informing

them that the Plaintiffs require jurisdictional discovery to respond to the WPP Parties motion to

dismiss (ECF No. 93). In that e-mail, Plaintiffs’ counsel suggested that the WPP Parties agree to

adopt a discovery schedule similar to what was ordered in the N. Am. Sugar Indust. Inc. v. Xinjiang

Goldwind Sci. & Tech. Co., Ltd., (No. 20-cv-22471-DPG-AMO, paperless order (S.D. Fl. Feb 25.

2021), ECF No. 80)).4. Pursuant to Local Rule 7.1, Plaintiffs also offered to have a telephone

conference if the Defendants believe it was warranted, to discuss the matter further. A copy of the

e-mail is annexed hereto as Exhibit B. At WPP Parties counsel's request, a telephone conference was

held on June 7, 2021. At the end of the telephone call, the WPP Parties' counsel informed Plaintiffs

counsel that they would confer with their clients and respond to the request thereafter.

On June 9, 2021, the WPP Parties' counsel notified Plaintiffs’ counsel bye-mail that the WPP

Parties “are not yet in a position to consent to or oppose your request, as we lack sufficient detail to

understand the scope of the jurisdictional discovery you intend to seek.” A copy of the letter

delivered by e-mail is annexed hereto as Exhibit C. From the letter, it is clear that the WPP Parties

will not consider Plaintiffs request without advance notice of (I) the topics of discovery (if not the

actual discovery requests), (ii) the description of the discovery sought, and (iii) the number of

discovery requests to be made, all of which is inappropriate at this time and which is an attempt by

4 Specifically, allowing the Plaintiffs 120 days to conduct discovery limited to the matter of

establishing personal jurisdiction over the Defendants, and requesting that all jurisdictional discovery

disputes be referred to the Magistrate Judge for resolution. Plaintiffs believe 120 days to conduct discovery

to be appropriate: (I) anticipating that the WPP Parties will object to various discovery requests, which will

require additional time to resolve and (ii) looking to this Court's decision in N. Am. Sugar Indust., Inc. v.

Xinjiang Goldwind Sci. & Tech. Co., Ltd., No. 20-cv-22471 (ECF No. 80) as and as for guidance, 120 days

for discovery appears to be appropriate.

5

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the WPP Parties to control any investigation into their conduct.

Asthe parties have conferred and are unable to agree, Plaintiff must now seek relief from the

Court authorizing jurisdictional discovery and staying/extending the Plaintiffs’ time to respond to

the WPP Parties' motion until after jurisdictional discovery has concluded.

LEGAL ARGUMENT

I. JURISDICTIONAL DISCOVERY IS APPROPRIATE IN THIS MATTER

When a defendant contesting jurisdiction files sworn testimony challenging jurisdiction, as

is the case here, the plaintiff bears the burden to show jurisdiction is appropriate. Posner v. Essex

Ins. Co., 178 F.3d 1209, 1214 (11th Cir. 1999). Accordingly, when the defendants submit a factual

challenge to the allegations of jurisdiction, the plaintiffs have a qualified right to conduct

jurisdictional discovery to respond to the defendant's challenge. In re Zantac (Ranitidine) Prod.

Liab. Litig., No. 20-MD-2924, 2020 WL 6907056, at *2 (S.D. Fla. Nov. 24, 2020). 

a court does not have discretion to grant or deny a request for jurisdictional discovery

[when jurisdictional facts are in dispute]. . . . the element of discretion, if any, exists

not with respect to whether there will be jurisdictional discovery, but rather onlywith

respect to the form that the discovery will take. Eaton v. Dorchester Dev., Inc., 692

F.2d 727, 730 (11th Cir. 1982), citing The Use of Discovery to Obtain Jurisdictional

Facts, 59 Va.L.Rev. 533, 546–47 (1973).

Absent the plaintiffs’ right to engage in jurisdictional discovery, a defendant can successfully

challenge jurisdiction by submitting only that information which it sees fit, and withholding other

information regarding its contacts with the forum. Elardi v. I.S. Makinen Oy, No. 19-22229-CIV,

2019 WL 6003210, at *2 (S.D. Fla. Nov. 14, 2019) quoting Diamond Chem. Co. v. Atofina Chems.,

Inc., 268 F. Supp. 2d 1, 15 (D.C. Cir. 2003).

In the instant action, the WPP Parties have submitted two declarations in opposition to

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jurisdiction. Plaintiffs require jurisdictional discovery to (I) depose the declarants in order to

examine, better understand, and test the veracity and completeness of the statements made in the

Defendants' declarations and (ii) obtain written discovery relevant to the issues raised to use in

response to Defendants' declarations and Motion to Dismiss.

II. PLAINTIFFS REQUIRE JURISDICTIONAL DISCOVERY TO REBUT

DEFENDANTS’ CLAIMS THAT THEY ARE NOT SUBJECT TO SPECIFIC

JURISDICTION.

The Court should permit Plaintiffs to take discovery from the WPP Parties so that the

Plaintiffs may obtain evidence regarding (I) the relationship between the named defendants and the

other subsidiaries under WPP and (ii) the WPP Parties' involvement in promoting Cuban tobacco

products/events for Imperial and/or Habanos.

Under Florida's long-arm statute, a defendant is subject to Florida's jurisdiction if, inter alia,

the defendant committed a tortious act within the state, and the cause of action arises from that

conduct5

. Fla. Stat. Ann. § 48.193(1)(a)(2). Plaintiffs allege that WPP, through its ownership in and

its control of Y&R and BCW “causes, directs [or] participates in, or profits from, trafficking” by

Imperial, Habanos, Y&R, BCW, Twitter, YouTube, and Instagram.” Am. Compl. ¶31. Plaintiffs

further explain that the tort committed, i.e. the trafficking performed by Y&R and BCW, is

“marketing, merchandizing, or advertising services for the benefit of the Cuban government and the

companiesit controls, including Habanos,” and that such tortious conduct was committed in Florida

and caused damage to the Plaintiffs, some of whom reside in Florida. Am. Compl. ¶¶33-35, 39. 

5 A defendant is also subject to Florida's jurisdiction if the defendant committed an act or omission

outside of Florida, injuring persons within Florida, and the defendant was engaged in solicitation or service

activities within Florida. Fla. Stat. Ann. § 48.193(1)(a)(6)(a).

7

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BCW and Y&R have submitted nearly identical statements in support of the Motion to

Dismiss each of which denies aiding in marketing/advertising on behalf of Imperial and Habanos.

The declarations continue to state that the name and brand of BCW and/or Y&R are used by several

distinct and legallyseparate subsidiaries of WPP, and that the conduct complained of was performed

by a foreign entity that is not in the corporate chain of ownership for BCW and/or Y&R. Lombardo

Decl. ¶¶ 19-23, Bellinghausen Decl. ¶¶22-28. However, each declaration raises questions and issues

for which Plaintiffs are entitled to discovery.

A. The Plaintiffs are Entitled to Jurisdictional Discovery from BCW

Lombardo, BCW's CFO, states that his declaration is based on information obtained by “I)

conferring with a subject matter expert within the Company; and/or ii) reviewing BCW business

records stored in our financial systems.” (Lombardo Decl. ¶3). BCW has a subject matter expert,

presumably versed in BCW's activities in Florida, but astonishingly fails to submit that person's

declaration (or even the identify of that person). It is apparent that Lombardo's declaration is a

quintessential example of a defendant challenging jurisdiction by submitting only information that

it sees fit to submit. Elardi, No. 19-22229-CIV, 2019 WL 6003210, at *2 (S.D. Fla. Nov. 14,

2019)).

BCW’s declaration raises other questions throughout its text. For example, although

Lombardo states that there are only “about 8” employees working in Florida, (Lombardo Decl. ¶¶3,

8), Lombardo’s declaration is devoid of any mention of consulting with any of the 8 employees in

preparation of his declaration, allowing for a significant gap in Lombardo's “knowledge.”

Additionally, although Lombardo states that he queried BCW's general ledger and financialreporting

system to determine whether BCW ever had Habanos or Imperial as a client, ( Lombardo Decl. ¶13-

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17), he apparently did not query the company's emails or even search its client files. Moreover,

although Lombardo claims that he searched BCW's ledger and financial reporting system to see if

Habanos or Imperial were clients of BCW6, he apparently chose to search the employee time entries

for references to “Cuba” as opposed to “Habanos” or “Imperial”. It appears that BCW's declarant

has gaps in his knowledge and BCW has selectively proffered only that information it sees fit to

provide in support of its Motion to Dismiss.

BCW's declaration raises further questions which are ripe for discovery. For example,

BCW's declaration states that “BCW's Miami office has not been paid by Habanos or Imperial”, but

then states that “Nor has BCW received any revenue in the U.S. from Habanos or Imperial”. 

Lombardo Decl. ¶14-16 (emphasis added). Not only is there an apparent, unknown distinction

between BCW Miami and the rest of BCW, LLC, but the statement that BCW has not received

revenue from Habanos or Imperial is qualified by limiting it to within the United States, allowing

for the possibility that BCW did receive revenue from Habanos or Imperial albeit outside the United

States.

BCWfurther claims thatHabanos was a client of BCW S.L.(Spain), implying that BCW S.L.

(Spain) performed marketing for Imperial and/or Habanos. BCW also states that BCL S.L. (Spain)

wasrestructured out of BCW's corporate chain and now “flows up” directly to WPP without coming

into contact with BCW. Lombardo Decl. ¶¶21-25. Lombardo bases his conclusion on unidentified

tax documents from 2003, documents that were not provided to Plaintiffs. Without discovery,

6 Lombardo also claims that “[i]f a U.S. office of BCW had worked for a client, then client would

need to be set up in these financial systems, even if invoicing were undertaking by another office . . .”

Lombardo Decl. ¶15. However, this system does not preclude the concept that BCW may have had WPP or

BCW S.L. (Spain) as a client and performed work for those entities, thus avoiding any listing of Imperial

Brands plc or Habanos as a client.

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Plaintiffs are left with no option other than to accept Lombardo's unchallenged, self-serving and

selective statements on the matter. However, “[a] plaintiff is not required to rely exclusively on a

defendant’s affidavit for resolution of a jurisdictional issue.” Ash v. Royal Caribbean Cruises Ltd.,

No. 13-20619-CIV, 2013 WL 12122147, at *1 (S.D. Fla. June 11, 2013) (citing Blanco v. Carigulf

Lines, 632 F.2d 656, 658 (5th Cir. 1980)). Plaintiffs are entitled to discovery on this matter, to

reviewthe documents and information relied on byBCW's declarant, including those documents and

sources used by Lombardo to reach his conclusion that Habanos was a client of BCW S.L. (Spain),

and those documents and sources that reflect that corporate structure of the WPP subsidiaries, and

the relationship between BCW and BCW S.L. (Spain).

Plaintiffs are entitled to discovery regarding, inter alia, BCW's trafficking in the State of

Florida and to rebut BCW's declaration, including but not limited to, discovery from Lombardo, and

the “subject matter expert” as well. Proper jurisdictional discovery will prevent BCW from picking

and choosing at its discretion which sources it will use to obtain information, and/or which search

terms it will use to query its sources, and what information it chooses to withhold.

B. The Plaintiffs are Entitled to Jurisdictional Discovery from Y&R

In support of its motion, Y&R submits the declaration of Jim Bellinghausen, the CFO of

VMLY&R

7

. Similar to the declaration submitted byBCW, Bellinghausen statesthat his declaration

is based on information obtained by “I) conferring with a subject matter expert within the Company;

and/orii) reviewingVMLY&R businessrecords and public information.” (BellinghausenDecl. ¶5).

Y&R has a subject matter expert, presumably versed in Y&R's activities in Florida, but like BCW,

7 Although Bellinghausen claims to be the CFO of VMLY&R, he also states that VMLY&R is just

an alias for Y&R and VML, LLC doing business together, but they remain separate legal entities. It is

unclear if Bellinghausen is a CFO of one or both entities, or if there is a different VMLY&R entity.

10

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it fails to submit that person's declaration (or even identify that person). Once again, the Defendant's

declaration is a quintessential example of a defendant challenging jurisdiction by submitting only

that information which it sees fit. Elardi, No. 19-22229-CIV, 2019 WL 6003210, at *2 (S.D. Fla.

Nov. 14, 2019)).

Y&R's declaration makes a distinction between its employees who work in Miami, Florida

(referred to as the “Miami office” or “VMLY&R Miami”), and a regional group in Miami that

oversees VMLY&R's Latin American operations. Bellinghausen Decl. ¶10. While Y&R

acknowledges this regional group as part of Y&R, the various descriptions of the queries and

searches performed byBellinghausen in preparation for his declaration refer to the VMLY&R Miami

group, and not the “regional group”. Bellinghausen Decl. ¶¶ 10, 12, 16, 17. Plaintiffs are entitled

to jurisdictional discoveryregarding this “regional group” and whetherit was involved in trafficking

Plaintiffs’ Property.

Bellinghausen, in his declaration. states that he queried VMLY&R's general ledger and

financialreporting system to determine whether Habanos or Imperial was ever a client of VMLY&R

(Bellinghausen Dec ¶14, 16), however, apparently he did not query the company's emails, search

their client files, or interview any of the employees at VMLY&R Miami. Moreover, while the

declaration is unclear, Bellinghausen's search appears to have omitted the “regional group”. Y&R

also claims that “[n]o U.S.-based employees of any WPP-affiliated entities have or have ever had

accessto send or receive e-mails from the e-mail address, press.habanos@yr.com(the e-mail address

used in marketing Habanos products). Bellinghausen ¶21. It is unclear how Y&R knows which

employees have/had access to said e-mail address, and it does not refute the fact that the address used

in promoting the Habanos products is a Y&R e-mail address. Plaintiffs are entitled to further

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discovery regarding this e-mail address.

Y&R claims that they confirmed that “a distinct foreign corporation called 'VMLY&R

Madrid S.L.' . . . . previously had Habanos as a client.” (Bellinghausen ¶24), suggesting that

VMLY&R Madrid S.L. performed the trafficking for Habanos. Y&R claims that 20 years ago, the

predecessorto VMLY&R Madrid S.L. was moved out of VMLY&R's corporate chain and is neither

a direct or indirect subsidiary of “VMLY&R”. Bellinghausen Decl.¶ ¶20, 25 However, as

VMLY&R is merely an alias used by Y&R and VML, LLC, and not a corporation, Bellinghausen's

statement is unclear8. Bellinghausen states that he basis his conclusion on unidentified tax documents

from 2003 - documents which were not provided to Plaintiffs. Bellinghausen Decl. ¶27.

Bellinghausen also claims that VMLY&R Madrid S.L. has its own employees with no office in the

United States. Bellinghausen ¶25. However, VMLY&R, España (Madrid)'s webpage indicates

otherwise9. A screenshot of said webpage shows:

8 To Bellinghausen's credit, he does clarify that VMLY&R Madrid S.L. is not a subsidiary of Y&R

(Bellinghausen Decl. ¶28). However, Bellinghausen's confusion between the Y&R company entity and an

alias name allows for the possibility that the various conclusions in the declaration may be in error and that

proper discovery should be had by the Plaintiffs.

9

https://www.vmlyr.com/es-es/spain-madrid last visited June 14, 2021.

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The text translates as “/WHAT MAKES US GREAT When we join forces there is no great obstacle.

From Madrid to Kansas City and Sydney, we are a team of more than 6000 people in more than 60

cities around the world”. Clicking on the “Nuestra Oficinas”, the “Our Offices” link, takes the user

to the webpage https://www.vmlyr.com/es-es/node/86, which in turn lists the United States as one

of the locations for its offices, and clicking on the Untied States link takes the user to

https://www.vmlyr.com/en-us/united-states which lists Defendant Y&R's office, 601 Brickell Key

Drive Suite 1100, Miami Florida 33131 United States. Clearly the “foreign” entity is not as

“distinct” as VMLY&R would have this Court to believe.

Without discovery, Plaintiffs are left with no option other than to accept Bellinghausen's

unchallenged,self serving and selective statements on the matter. As discussed above, “[a] plaintiff

is not required to rely exclusively on a defendant’s affidavit for resolution of a jurisdictional issue.”

Ash, 2013 WL 12122147, at *1 (S.D. Fla. June 11, 2013). Plaintiffs are entitled to discovery on the

conclusions set forth in Y&R declaration; Plaintiffs are entitled to discovery on, inter alia, the

documents and sources relied on by Y&R for the conclusions set forth in its declaration, the

corporate structure of the WPP subsidiaries and the relationship between Y&R and VMLY&R

Madrid S.L., the alleged restructuring of Y&R, LLC, the conclusion that Y&R did not have Habanos

and/orImperial as a client and/or that they did not perform marketing for anyCuban tobacco product

and/or event, the conclusion asserted by Y&R that a foreign entity had Habanos as a client. Such

discovery is necessary for the Plaintiffs to properly address Y&R’s Motion to Dismiss.

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III. PLAINTIFFS REQUIRE JURISDICTIONAL DISCOVERY TO REBUT

DEFENDANTS’ ASSERTION THAT DEFENDANTS ARE NOT SUBJECT TO

GENERAL JURISDICTION

Defendants, in the Motion to Dismiss, argue that “Plaintiffs Correctly Do Not Assert That

WPP Defendants Are Subject To General Jurisdiction In Florida.” To the contrary, Plaintiffs, in

their Amended Complaint, state that both Y&R and BCW maintain offices in the State of Florida, 

(Am. Compl. ¶26, 27 ) and should be entitled to the favorable inferences attributed to such

allegations. Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002)

(“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.” (Internal citation

omitted)). As noted by this Court, plaintiffs are limited by and to the information that is available and

“there is no way for Plaintiffs to have personal knowledge of the inner workings of Defendants'

various business organizations.” Exhibit Icons, LLC v. XP Companies, LLC, No. 07-80824-CIV,

2008 WL 616104, at *2 (S.D. Fla. Mar. 3, 2008) (granting jurisdictional discovery to determine

general jurisdiction over defendants argument that plaintiffs conceded the lack of general

jurisdiction). Thus Plaintiffs were limited by the information known to Plaintiffs, the location of

each defendants' office. Plaintiffs are however entitled to discovery regarding the defendants' full

presence in Florida to establish General Jurisdiction over the defendants.

BCW states that is an entity organized under the laws of Delaware, with its headquarters in

New York10

. Lombardo Decl. ¶4. Similarly, Y&R states that it is entity organized under the laws

10 Lombardo refers to BCW as a “corporation” when in fact it is a limited liability company, which

raises other questions. In fact, an on-line search of Delaware's Secretary of State corporate entity website

reflects at least two entities named “BCW INC.” (File no. 2196689 and 3631599) and two entities named

“BCW LLC” (File No. 3553242 and 5154723) and various other entities with permutationsthat incorporate

the BCW letters. Plaintiffs are entitled to discovery to clarify the issue regarding the entities.

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of Delaware, with its headquarters in New York11

. Bellinghausen Decl. ¶4. As this Court noted less

than a year ago, “the Court has not held that only a corporation's place of incorporation or its

principal place of business may suffice for general jurisdiction. The Court has merely indicated that

those two places are the most common ways of establishing general jurisdiction.” Storm v. Carnival

Corp., No. 20-22227-CIV, 2020 WL 7415835, at *3 (S.D. Fla. Decl. 18, 2020).

General Jurisdiction occurs where “continuous corporate operations within a state [are] so

substantial and of such a nature as to justify suit ... on causes of action arising from dealings entirely

distinct from those activities” Id. quoting International Shoe v. Washington, 326 U.S. 318 (1945).

It is undisputed that (I) both BCW and Y&R are subsidiaries of WPP plc, and (ii) both BCW and

Y&R maintain at least one office in Miami, Florida.12 Lombardo Decl. ¶¶5, 8, Bellinghausen Decl.

¶¶5, 8. However, the facts bearing on whether or not the WPP Parties' presence in Florida warrants

a finding of General Jurisdiction are exclusively within the knowledge of the WPP Parties.

Y&R and BCW attempt to minimize their presence in Florida by proffering the number of

employees they have in Florida13

and the percentages of total revenue that is derived from their

respective offices in Florida. Lombardo Decl. ¶¶8, 11, Bellinghausen Decl. ¶¶9, 12. However,

“[p]laintiff must be given an opportunity to develop facts sufficient to support a determination on

11 Bellinghausen also refers to Y&R as a “corporation” when in fact it is a limited liability company,

which raises questions as to which entity is being discussed in the declaration.

12 Bellinghausen's declaration also mentions that VMLY&R maintains a “ regional group in Miami

to oversee its Latin American operations.” Bellinghausen Decl. ¶10. As Cuba is a Latin American country,

it appears that such a group would oversee activities relating to Cuba, and thus Bellinghausen's declaration

would support General Jurisdiction. However, Plaintiffs require further discovery on this “Latin American

Group” to rebut the Defendants' motion.

13 Even this number is subject to scrutiny and jurisdictional discovery as both declarations fail to

specify whether the number of employees includes employees based in an office outside of Florida but work

remotely from Florida.

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the issue of jurisdiction. Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 731 (11th Cir. 1982).

Plaintiffs are entitled to jurisdictional discovery to show that each defendant maintains substantial

and continuous corporate operations in Florida. Such discovery would likely include discovery to

ascertain (I) the actual revenue derived in Florida (and not a percentage) for each of the last few years

(and not just 2020), (ii) the amount of corporate funds expended in Florida for each of the law few

years, (iii) advertisements that were directed at, or take place in, Florida, (iv) corporate sponsorship

that occurs in Florida, (v) the date that each defendant started operations in Florida (vi) corporate

eventsthat have occurred in Florida, (vii) corporate discounts available to defendant's employees for

goods, services and/or attractions in Florida, and (viii) property leased and/or owned by the

defendants in Florida, and (ix) other information that will further prove that BCW and Y&R are “at

home” in the State of Florida.

CONCLUSION

Plaintiffs are unable to properly respond to the WPP Parties' Motion to Dismiss as the

relevant information is within the exclusive knowledge of the WPP Parties. For the foregoing

reasons, Plaintiffs respectfullyrequest that the Court allow the Plaintiff one hundred and twenty days

to conduct jurisdictional discovery, and stay/extend Plaintiffs’ time to respond to the WPP Parties

Motion to Dismiss until 21 days from the close of jurisdictional discovery.

REQUEST FOR HEARING

Due to the confusing representations made in the Defendants' declarations and the issues

raised in Plaintiffs' motion, Plaintiff respectfully requests a hearing on this matter. Plaintiffs believe

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Case 1:20-cv-23287-DPG Document 97 Entered on FLSD Docket 06/15/2021 Page 19 of 20
that they will require approximately ten minutes of oral argument before the Court.

Dated: June 15, 2021

RODRIGUEZ TRAMONT & NUÑEZ P.A.

By: /s/ Frank R. Rodriguez . 

Frank R. Rodriguez

Florida Bar No. 348988

Primary email: frr@rtgn-law.com

255 Alhambra Circle

Suite 1150

Coral Gables, FL 33134

Telephone: (305) 350-2300

BERENTHAL & ASSOCIATES, P.C.

By: /s/ David W. Berenthal 

David W. Berenthal

Florida Bar No. 159220

E-mail: dwb@berenthalaw.com

45 East 72nd Street

Suite 5C

New York, NY 10021

Telephone: (212) 302-9494

CERTIFICATE OF GOOD FAITH CONFERENCE;

CONFERRED BUT UNABLE TO RESOLVE ISSUES PRESENTED IN THE MOTION 

Pursuant to Local Rule 7.1(a)(3)(A), I hereby certify that counsel for the movants has

conferred with all parties who may be affected by the relief sought in this motion in a good faith

effort to resolve the issues, but has been unable to resolve the issues.

/s/ David W. Berenthal 

David W. Berenthal, Esq.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 15, 2021, 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/ David W. Berenthal 

David W. Berenthal, Esq.

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