UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CV-62085-RAR

BALESIA TECHNOLOGIES, INC., et al., 

Plaintiffs,

v. 

JUAN PABLO CALVO CUELLAR, 

Defendant. 

_______________________________________/ 

ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION

GRANTING DEFENDANT’S MOTION TO DISMISS AND GRANTING 

PLAINTIFFS LEAVE TO FILE AN AMENDED COMPLAINT

THIS CAUSE comes before the Court upon United States Magistrate Judge Jared M. 

Strauss’s Report and Recommendation [ECF No. 26] (“Report”), entered on May 1, 2023. The 

Report recommends that Defendant’s Motion to Dismiss the Complaint [ECF No. 7] (“Motion”) 

be granted. See Report at 1. The Report properly notified the parties of their right to object to 

Magistrate Judge Strauss’s findings and the consequences for failing to object. Id. at 21. 

Plaintiffs did not file any objections to the merits of the Report and only request leave to file a

Second Amended Complaint. See Pls.’ Limited Obj. to R & R at 1.1

 Accordingly, the Court 

will review Magistrate Judge Strauss’s Report for clear error as explained below. 

When a magistrate judge’s “disposition” has properly been objected to, district courts must 

review the disposition de novo. FED. R. CIV. P. 72(b)(3). However, when no party has timely 

objected, “the court need only satisfy itself that there is no clear error on the face of the record in 

1 Plaintiffs have also objected to the Report “to the extent that any dismissal of the Amended Complaint 

[ECF No. 18] is with prejudice.” Id. Given that the Court will permit amendment as requested by 

Plaintiffs, the nature of the Report’s dismissal is not an issue. 

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order to accept the recommendation.” FED. R. CIV. P. 72 advisory committee’s notes (citation 

omitted). Although Rule 72 itself is silent on the standard of review, the Supreme Court has 

acknowledged Congress’s intent was to only require a de novo review where objections have been 

properly filed, not when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It 

does not appear that Congress intended to require district court review of a magistrate [judge]’s

factual or legal conclusions, under a de novo or any other standard, when neither party objects to 

those findings.”). 

Because no party has filed a meritorious objection to the Report, the Court did not conduct 

a de novo review of Magistrate Judge Strauss’s findings. Rather, the Court has reviewed the 

Report for clear error. Finding none, it is hereby

ORDERED AND ADJUDGED that the Report [ECF No. 26] is AFFIRMED AND 

ADOPTED. Accordingly, Defendant’s Motion to Dismiss [ECF No. 7] is GRANTED and 

Plaintiffs’ Amended Complaint [ECF No. 18] is DISMISSED with leave to amend. The Court 

hereby grants Plaintiff one final opportunity to cure the pleading deficiencies identified in 

Magistrate Judge Strauss’s Report by filing a Second Amended Complaint on or before May 31, 

2023. Failure to timely file a Second Amended Complaint will result in dismissal of this action 

without further notice. 

In granting Plaintiff’s request for leave to amend, the Court reiterates that the Amended 

Complaint as pled is deficient in many regards. As highlighted in the Report, for example, Count 

I fails to adequately allege that Defendant owed fiduciary duties to Nuevatel after Defendant 

ceased serving as Chairman of Nuevatel’s Board on March 29, 2022. Report at 9. Because the 

power of attorney undermines Nuevatel’s allegation that Defendant continued to owe fiduciary 

duties to Nuevatel following Defendant’s tenure as Chairman (given that the document expressly 

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states that it grants a power of attorney to Defendant in his capacity as Chairman), the Amended 

Complaint fails to plausibly allege the existence of a fiduciary duty after Defendant’s tenure as 

Chairman ended. Id. at 11–12. Moreover, even if Defendant owed fiduciary duties to Nuevatel 

until October 2022, Nuevatel has failed to allege sufficient facts showing a link between Defendant 

and the Bolivian Regulator’s decision to plausibly establish a breach of such duties on the part of 

Defendant (at any time). Id. at 12–13. The links between Defendant and the Bolivian 

Regulator’s decision are premised almost entirely on “information and belief.” Id. at 13. 

When allegations are based solely “upon information and belief,” courts need not accept 

them as true at the motion-to-dismiss stage. See Smith v. City of Sumiton, 578 F. App’x 933, 936 

n.4 (11th Cir. 2014) (“[F]or purposes of a Rule 12(b)(6) motion to dismiss, we do not have to take 

as true allegations based merely ‘upon information and belief.’” (citing Mann v. Palmer, 713 F.3d 

1306, 1315 (11th Cir. 2013))). Courts should only accept such allegations as true when they are 

supported by non-conclusory factual allegations. See Jones v. Unity Behav. Health, LLC, No. 20-

14265, 2021 WL 5495578, at *3 n.1 (11th Cir. Nov. 23, 2021) (“Because that conclusory assertion 

[made upon information and belief] is not backed up by any factual allegations, we don’t accept it 

as true in reviewing the dismissal of these claims.” (citing Oxford Asset Mgmt., Ltd. v. Jaharis, 

297 F.3d 1182, 1188 (11th Cir. 2002))). 

With regards to Count II, the Report correctly highlights that Plaintiffs have failed to 

plausibly allege “damage to the plaintiff as a result of the breach of the business relationship.” 

Bortell v. White Mountains Ins. Grp., Ltd., 2 So. 3d 1041, 1048 (Fla. 4th DCA 2009) (quoting N. 

Am. Van Lines, Inc. v. Ferguson Transp., Inc., 639 So. 2d 32, 33 (Fla. 4th DCA 1994)); see also 

Duty Free Americas, Inc. v. Estee Lauder Cos., 797 F.3d 1248, 1279 (11th Cir. 2015). This is an 

essential element of a tortious interference claim and Plaintiffs have not alleged it at all, plausibly 

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or otherwise. Report at 19. Plaintiffs have only alleged, in a wholly conclusory fashion, that 

Defendant’s interference damaged the business relationship between them and PTI. Id.; Am.

Compl. ¶ 54. In other words, the Amended Complaint does not allege, or even suggest, that any 

breach of the business relationship between Plaintiffs and PTI occurred. See Worldwide 

Primates, Inc. v. McGreal, 26 F.3d 1089, 1091 (11th Cir. 1994) (citing Tamiami Trail Tours, Inc. 

v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985)) (“An integral element of a claim of tortious 

interference with a business relationship requires proof of damage to the plaintiff as a result of the 

breach of the relationship.”) (emphasis added).

In sum, Plaintiffs are advised that their Second Amended Complaint will necessitate 

substantially more factual development to comply with the required pleading standards should 

they wish to proceed with this action.

DONE AND ORDERED in Miami, Florida, this 17th day of May, 2023.

 _________________________________

 RODOLFO A. RUIZ II

 UNITED STATES DISTRICT JUDGE

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