UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-23103-BLOOM/Otazo-Reyes

CASA EXPRESS CORP, as Trustee

of Casa Express Trust,

Judgement Creditor, 

v. 

BOLIVARIAN REPUBLIC OF VENEZUELA, 

 Judgment Debtor. 

________________________________________/ 

 

ORDER ON OBJECTIONS TO REPORT & RECOMMENDATION

THIS CAUSE is before the Court upon Respondent Raul Gorrin Belissario’s (“Gorrin”) 

Motion to Dismiss for Lack of Service or Personal Jurisdiction or Alternatively Motion to Quash 

Service. ECF No. [128] (“Motion”). All post-judgment matters, including the instant Motion, were 

referred to United States Magistrate Judge Alicia Otazo-Reyes. ECF No. [148]. On April 18, 2023, 

Judge Otazo-Reyes issued a Report and Recommendation, ECF No. [180] (“R&R”) 

recommending that Gorrin’s Motion be granted without prejudice. See id. at 13. The R&R advised 

the parties that objections to the R&R must be filed within fourteen (14) days of the R&R. Id. Casa 

Express Corp (“Casa”), thereafter timely filed Objections to the Magistrate Judge’s R&R, ECF 

No. [190] (“Objections”). Gorrin did not respond to Casa’s Objections. For the reasons that follow, 

the Objections are sustained.

I. BACKGROUND

On August 27, 2021, Casa commenced this action by registering an Amended Final

Judgment issued by the Southern District of New York against Judgment Debtor Bolivarian 

Republic of Venezuela. ECF No. [1]. Casa thereafter filed its Ex Parte Expedited Motion to 

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Commence Proceedings Supplementary, to Implead Defendants, and for Issuance of Statutory 

Notices to Appear, ECF No. [3], on September 10, 2021. On June 7, 2022, Casa filed its First 

Motion to Amend, ECF No. [42]. That Motion was granted by Judge Otazo-Reyes, see ECF No. 

[59], and Casa filed its Amended Ex Parte Expedited Motion to Commence Proceedings 

Supplementary, ECF No. [60] on September 2, 2022. Statutory Notices to Appear were issued to 

Impleaded Defendants, including Gorrin. ECF No. [70]; see also ECF Nos. [62]-[69], [71]-[73]. 

On October 12, 2022, Casa moved for a Clerk’s entry of default against Gorrin. ECF No. 

[93], and the Clerk entered default, ECF No. [99]. Gorrin then appeared and moved to set aside 

the default entered against him, ECF No. [101]. The Court granted Gorrin’s Motion to set aside 

the default on December 16, 2022, ECF No. [109]. On December 22, 2022, Casa filed a return of 

service indicating that Gorrin was served with the Amended Statutory Notice to Appear and the 

Ex Parte Expedited Motion to Commence Proceedings Supplementary via the Florida Secretary 

of State on December 16, 2022. ECF No. [114].

On January 20, 2023, Gorrin and the Respondent Entities filed their Affidavit in Response 

to the Notices to Appear and Memorandum in Opposition the Amended Motion for Proceedings 

Supplementary. ECF No. [127] Later the same day, Gorrin filed the instant Motion seeking to 

dismiss or quash service. ECF No. [128]. Casa filed a Response in Opposition, ECF No. [159], to 

which Gorrin filed a Reply, ECF No. [169]. The case was referred to Judge Otazo-Reyes for all 

post-judgment matters. ECF No. [148]. On April 18, 2023, Judge Otazo-Reyes issued a R&R, ECF 

No. [180], in which she recommended the Motion be granted. Casa timely filed Objections, 

arguing that Gorrin and the Impleaded Defendants waived their right to file a 12(b) motion to 

dismiss by first filing a responsive pleading. ECF No. [190] at 2-3. Alternatively, Casa objects to 

the recommendation that service must be attempted via the Hague Convention prior to the Court 

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authorizing alternate service. Id. at 3-12. Casa also objects to the recommendation that the Court 

find that it does not have personal jurisdiction over Gorrin. Id. at 12-19. Gorrin did not respond to 

Casa’s Objections.

II. LEGAL STANDARD

“In order to challenge the findings and recommendations of the magistrate judge, a party 

must file written objections which shall specifically identify the portions of the proposed findings 

and recommendation to which objection is made and the specific basis for objection.” Macort v. 

Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (quoting Heath v. Jones, 863 F.2d 815, 822 

(11th Cir. 1989)) (alterations omitted). The objections must also present “supporting legal 

authority.” S.D. Fla. L. Mag. J.R. 4(b). The portions of the report and recommendation to which 

an objection is made are reviewed de novo only if those objections “pinpoint the specific findings 

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

also Fed. R. Civ. P. 72(b)(3). If a party fails to object to any portion of the magistrate judge’s 

report, those portions are reviewed for clear error. Macort, 208 F. App’x at 784 (quoting Johnson 

v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)); see also Liberty Am. Ins. Grp., Inc. v. 

WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001). “It is improper for 

an objecting party to ... submit [ ] papers to a district court which are nothing more than a rehashing 

of the same arguments and positions taken in the original papers submitted to the Magistrate Judge. 

Clearly, parties are not to be afforded a ‘second bite at the apple’ when they file objections to an 

R & R.” Marlite, Inc. v. Eckenrod, No. 10-23641-CIV, 2012 WL 3614212, at *2 (S.D. Fla. Aug. 

21, 2012) (quoting Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 

382 (W.D.N.Y. 1992)). A district court may accept, reject, or modify a magistrate judge’s report 

and recommendation. 28 U.S.C. § 636(b)(1).

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III. DISCUSSION

Casa argues that Gorrin and the Impleaded Defendants preserved their insufficient service 

of process and lack of personal jurisdiction defenses, “but waived their right to file a motion to 

dismiss asserting those defenses after they filed a responsive pleading.” ECF No. [190] at 3. The

record reveals that on January 20, 2023, Gorrin first filed a Response to the Notice to Appear and 

Ex Parte Motion to Commence Proceedings Supplementary, ECF No. [127], and then filed the 

instant Motion to Dismiss, ECF No. [128]. Petitioner correctly argues that pursuant to the Federal 

Rules of Civil Procedure, Gorrin waived his right to file a 12(b) motion to dismiss by filing a 

responsive pleading prior to the motion. Rule 12(b) explains that a motion asserting lack of 

personal jurisdiction or insufficient service of process “must be made before pleading if a 

responsive pleading is allowed.” Fed. R. Civ. P. 12(b).

Gorrin argues that the Motion is timely and there has been no waiver because “it was filed 

concurrently with (or at most minutes after) their response affidavit” and the cases cited by 

Petitioner are inapplicable because they deal with motions to dismiss a complaint, not an Ex Parte

Motion to Commence Post-Judgment Proceedings Supplementary. ECF No. [169] at 3. However, 

“District Courts in the Eleventh Circuit routinely deny motions to dismiss as moot which are filed 

simultaneously with or after an answer is filed.” Walker v. Mead, No. 13-CV-1894, 2014 WL 

2778162, at *3 (M.D. Fla. June 18, 2014) (collecting cases); see also Tamiami Condo. Warehouse 

Plaza Ass’ n, Inc. v. Markel Am. Ins. Co., No. 19-CV-21289, 2019 WL 4863378, at *2 (S.D. Fla. 

Oct. 2, 2019) (“Courts have strictly followed the use of the word ‘before’ in Rule 12(b), and have 

found motions to dismiss untimely when they were filed after or even contemporaneously with an 

answer.”). While the cases Plaintiff cites in its Response involve the filing of a complaint rather 

than a motion to commence post-judgment proceedings, that fact is not dispositive. In Am. Home 

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Assurance Co. v. Weaver Aggregate Transp., Inc., another district court in this Circuit applied 

Rule 12 to the question of waiver of the right to bring a motion to dismiss in response to a motion 

to institute proceedings supplementary. No. 10-CV-329, 2017 WL 11633267, at *2 (M.D. Fla. 

Feb. 22, 2017). The rule is clear that a motion asserting any of the 12(b) defenses “must be made 

before a pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b). In his Reply, Gorrin 

concedes that the Amended Motion to Commence Proceedings Supplementary, is the operative 

pleading. ECF No. [169] at 3. Its Response in Opposition, ECF No. [127], is therefore a responsive 

pleading filed before a Motion to Dismiss or, in the alternative, a Motion to Quash Service.

As Judge Otazo-Reyes correctly recognized, Gorrin did raise the defenses in his first 

responsive pleading. Accordingly, the Court is mindful that the defenses are not waived. However, 

Gorrin waived his right to file a 12(b) motion to dismiss by filing his responsive pleading prior to 

the Motion to Dismiss. 

IV. CONCLUSION

Accordingly, it is ORDERED and ADJUDGED as follows: 

1. Casa’s Objections, ECF No. [190], are SUSTAINED. 

2. Gorrin’s Motion, ECF No. [128], is DENIED. 

DONE AND ORDERED in Chambers at Miami, Florida, on May 25, 2023. 

 

 BETH BLOOM 

UNITED STATES DISTRICT JUDGE

cc: Counsel of Record 

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