United States District Court, S.D. Florida, Miami Division
ORDER DENYING CARNIVAL CORPORATION'S MOTION TO
LAWRENCE KING UNITED STATES DISTRICT JUDGE.
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.
The Helms-Burton Act
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.
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. §
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).
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 1The 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.
Carnival's Motion to Dismiss
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.
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.
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.
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 ...