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Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd.

United States District Court, S.D. Florida

January 7, 2020


          Louis Judge.



         THIS CAUSE is before the Court upon Defendant Norwegian Cruise Line Holdings, Ltd.'s (“Norwegian” or “Defendant”) Motion to Dismiss, ECF No. [31] (“Motion”). Plaintiff Havana Docks Corporation (“Havana Docks” or “Plaintiff”) filed a response, ECF No. [36] (“Response”), to which Defendant filed a reply, ECF No. [41] (“Reply”). The Court has carefully considered the Motion, the Response and Reply, the record in this case and the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is granted.

         I. BACKGROUND

         On August 27, 2019, Havana Docks filed this action against Defendant pursuant to Title III of the Cuban Liberty and Democratic Solidarity Act (the “LIBERTAD Act” or “Act”). ECF No. [1] (“Complaint”). “One of the LIBERTAD Act's purposes is to ‘protect United States nationals against confiscatory takings and the wrongful trafficking in property confiscated by the Castro Regime.'” Id. ¶ 6 (citing 22 U.S.C. § 6022(6)).

         Plaintiff is a United States national as defined by 22 U.S.C. § 6023(15). Id. ¶ 7. In the Complaint, Plaintiff alleges that it is the rightful owner of an interest in, and claim to, certain commercial waterfront real property in the Port of Havana, Cuba, identified as the Havana Cruise Port Terminal (“Subject Property”). Id. Plaintiff claims that it owned the Subject Property until the Cuban Government confiscated it in 1960. Id. ¶¶ 8. Plaintiff further alleges that since its confiscation, the Subject Property has not been returned and adequate and effective compensation has not been provided. Id. ¶ 10. Plaintiff's ownership interest in and claim to the Subject Property has been certified by the Foreign Claims Settlement Commission (“Commission”) under the International Claim Settlement Act of 1949. Id. ¶ 12.

         According to the Complaint, beginning on or about March 2017 and continuing for at least two years thereafter, Norwegian “knowingly and intentionally 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 without the authorization of Plaintiff or any U.S. national who holds a claim to the Subject Property.” Id. ¶ 13. At that time, Defendant is alleged to have participated in, and profited from, the Cuban Government's possession of the Subject Property without Plaintiff's authorization. Id. ¶ 14. Plaintiff claims that Norwegian's knowing and intentional conduct relating to the Subject Property is “trafficking” as defined in 22 U.S.C. § 6023(13)(A), and Defendant is liable to Plaintiff for all money damages allowed by statute. Id. ¶¶ 15-16.

         Defendant has now moved to dismiss the Complaint under Rule 12(b)(6).


         A pleading in a civil action must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although a complaint “does not need detailed factual allegations, ” it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)'s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570).

         When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353 (S.D. Fla. 2009) (“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678. A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). Although the court is required to accept as true all allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678.


         In the Motion, Norwegian argues that the Complaint should be dismissed for four reasons: 1) Plaintiff fails to plead sufficient facts to plausibly allege that Defendant knowingly and intentionally trafficked or traveled unlawfully; 2) applying Title III to Defendant would violate the Ex Post Facto Clause; 3) applying Title III retroactively violates the Due Process Clause; and 4) Plaintiff fails to allege that Defendant trafficked in property to which Plaintiff owns a claim. Because the Court finds the fourth issue to be dispositive, the Court considers it first.

         Norwegian argues that Plaintiff's “property” as defined in the LIBERTAD Act is not at issue in the Complaint because Plaintiff's property interest in the Subject Property is a leasehold that expired in 2004, thirteen years before Norwegian ships sailed to Cuba. As such, Defendant reasons that Plaintiff can only assert a valid cause of action under Title III against an entity alleged to have trafficked in the Subject Property, to which Plaintiff owns a claim, before the time-limited concession expired in 2004. In response, Plaintiff argues that the Court already considered and rejected the same argument made previously by Carnival Corporation in a related case. See Havana Docks Corp. v. Carnival Corp., Case No. 19-cv-21724, ECF No. [47]. The Court in Carnival agreed with Plaintiff that the interpretation suggested by Carnival (and Norwegian here) conflates a claim to a property and a property interest. Id. However, the Court has since found, upon further review, consideration, and analysis in another related case under similar facts, Plaintiff fails to state a claim as a ...

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