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Garcia-Bengochea v. Carnival Corp.

United States District Court, S.D. Florida, Miami Division

August 26, 2019

JAVIER GARCIA-BENGOCHEA, Plaintiff,
v.
CARNIVAL CORPORATION d/b/a CARNIVAL CRUISE LINE, Defendant.

          ORDER DENYING CARNIVAL CORPORATION'S MOTION TO DISMISS

          JAMES LAWRENCE KING UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Defendant Carnival Corporation's Motion to Dismiss, filed May 30, 2019 (DE 14). The Court has also considered Plaintiffs Response in Opposition (DE 24), and Carnival's Reply Brief (DE 27). In addition, the Court heard oral argument on the Motion on July 31, 2019.

         I. BACKGROUND

         A. The 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." In addition to strengthening international sanctions against the Cuban Government, under Helms-Burton, Congress sought to "protect United States nationals against confiscatory takings and the wrongful trafficking in property confiscated by the Castro regime." 22 U.S.C. § 6022(6). According to Congress's findings, "'trafficking' in confiscated property provides badly needed financial benefit... to the Cuban Government and thus undermines the foreign policy of the United States," including "protecting] claims of United States nationals who had property wrongfully confiscated by the Cuban Government." Id. § 6081(6)(B). "To deter trafficking," Congress found that "the victims of these confiscations should be endowed with a judicial remedy in the courts of the United States that would deny traffickers any profits from economically exploiting Castro's wrongful seizures." Id. §6081(11).

         To that end, Congress created a private right of action against any person who "traffics" in confiscated Cuban property. See Id. § 6082(a)(1)(A); id. § 6023(13)(A) (defining "traffics"). Specifically, under Title III of the Act, "any person that. . . traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages." Id. § 6082(a)(1)(A).[1]

         Shortly after Helms-Burton was passed, however, the President invoked Title Ill's waiver' provision, and "Title III has since been waived every six months, . . . and has never effectively been applied." Odebrecht Const., Inc. v. Prasad, 876 F.Supp.2d 1305, 1312 (S.D. Fla. 2012). That changed on April 17, 2019, when the U.S. Department of State announced that the federal government "will 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, Title III became effective for the first time on May 2, '2019 (which Carnival does not dispute).

         B. This Case

         That same day, Plaintiff Javier Garcia-Bengochea filed this "trafficking" action under Helms-Burton. Plaintiff alleges that he is the "rightful owner of an 82.5% interest in certain commercial waterfront real property in the Port of Santiago de Cuba." See Compl. ¶ 6, DE 1[2]The Complaint alleges that in October 1960, "the communist Cuban Government nationalized, expropriated, and seized ownership and control of the Subject Property." Id. ¶¶ 7-8. At the time, the property was owned and operated by a Cuban corporation named La Maritima, S.A., which was also nationalized by the Cuban Government in 1960. Id., Ex. A. Plaintiff claims that Carnival "trafficked" in the confiscated property when it "commenced, conducted, and promoted its commercial cruise line business to Cuba using the Subject Property by regularly embarking and disembarking its passengers on the Subject Property." Id. ¶ 12. Plaintiff therefore seeks money damages against Carnival pursuant to Title III of Helms-Burton.

         C. Carnival's Motion to Dismiss

         On May 30, 2019, Carnival moved to dismiss Plaintiffs Complaint for failure to state a claim. See Mot. Dismiss, DE 14. Carnival makes three arguments in support of dismissal. First, Carnival claims this action is barred by the "lawful travel" exception to "trafficking." See Id. at 12 (citing § 6023(13)(B)(iii)). According to Carnival, "[t]o plead trafficking under the Act, it is not enough to plead that a defendant was using confiscated Cuban property," but rather, "a plaintiff must go a step further and plead . .. that the use of the property was not incident [or necessary] to lawful travel." Id. Because Plaintiff does not plead these facts (and because Carnival claims its use of the docks was both incident and necessary to lawful travel in any event), Carnival argues that the Complaint should be dismissed with prejudice. See Id. at 13, 19.

         Second, Carnival argues that Plaintiff alleges in conclusory fashion that he is the "rightful owner" of the claim to the property, which Carnival contends is "undermined by the documents Plaintiff attached to his own Complaint." Id. at .19. Specifically, Carnival notes that the certified claim, attached to the Complaint "is not in [Plaintiffs] own name," but "was owned by Albert J. Parreno," a non-party to this litigation. Id.

         Third, 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." Id. at 17. 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." Id. at 18. And because La Maritima "is not a United States national capable of bringing a Helms-Burton claim," Carnival says Plaintiff cannot save his case by attempting to bring the action on behalf of the company. Id.

         D. Plaintiffs Response

         On June 24, 2019, Plaintiff filed his Response to the Motion to Dismiss. See PL's Resp., DE 24. As to trafficking, Plaintiff argues that the "lawful travel" exception is an affirmative defense to liability under the Act and therefore need not be refuted or negated in the Complaint to state a claim. See Id. at 5. Plaintiff contends that the Complaint adequately alleges Carnival trafficked within ...


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