De Fernandez v. CMA CGM S.A.
| Docket Number | 21-CV-22778-RUIZ/DAMIAN |
| Decision Date | 20 July 2023 |
| Parties | ODETTE BLANCO DE FERNANDEZ nee BLANCO ROSELL, et al., Plaintiffs, v. CMA CGM S.A. a/k/a CMA CGM THE FRENCH LINE, a/k/a CMA CGM GROUP and CMA CGM AMERICA LLC, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
REPORT AND RECOMMENDATION ON DEFENDANTS' COMBINED MOTIONS TO DISMISS [ECF NO. 72] AND PLAINTIFFS' MOTION TO STAY [ECF NO. 119]
THIS CAUSE is before the Court on Defendants, CMA CGM S.A. (“CMA France”) and CMA CGM (AMERICA) LLC (“CMA America”) (collectively “Defendants”), Combined Motions to Dismiss Plaintiffs' Amended Complaint, filed September 27, 2022 [ECF No. 72] (the “Motion to Dismiss”), and Plaintiffs' Motion to Stay Ruling on Collateral Estoppel filed March 24, 2023 [ECF No. 119] (the “Motion to Stay”). These Motions were referred to the undersigned pursuant to an order of referral by the Honorable Kathleen M Williams, United States District Judge, on behalf of the Honorable Marcia G. Cooke, United States District Judge, for appropriate resolution [ECF No. 78].[1] See 28 U.S.C § 636(b)(1)(B).
The undersigned has reviewed the Motion to Dismiss, the Response [ECF No. 77] and Reply [ECF No. 79] thereto, as well as Plaintiffs' Motion to Stay and related memoranda [ECF Nos. 125 and 130], all pertinent portions of the record, and the relevant legal authorities. The undersigned also heard from the parties who appeared, through counsel, before the undersigned on December 1, 2022, and on April 4, 2023, and is otherwise fully advised in the premises.
As discussed below, Plaintiffs, Cuban exiles and their estates and heirs, sued Defendants, related French and American entities engaged in international shipping, for claims arising under Title III of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, known as the Helms-Burton Act (22 U.S.C. § 6021, et seq.). Defendants seek dismissal of Plaintiffs' claims with prejudice on grounds Plaintiffs fail to state a claim for relief under the Helms-Burton Act, and Defendants seek dismissal as to Defendant CMA France based on a lack of personal jurisdiction. Plaintiffs seek a stay of this Court's consideration of one of the asserted grounds for dismissal, collateral estoppel.
For the reasons set forth below, the undersigned recommends Defendants' Motion to Dismiss be granted in part and denied in part and that the claims of all Plaintiffs, except those of Plaintiff Odette Blanco De Fernandez nee Blanco Rosell (“Ms. De Fernandez”), be dismissed. With respect to Ms. De Fernandez's claims, the undersigned recommends that her claims based on rights under a 70-Year Concession, discussed below, be dismissed on collateral estoppel grounds and that Plaintiffs' Motion to Stay consideration of the collateral estoppel issue be denied. The undersigned also recommends the Motion to Dismiss be denied as to personal jurisdiction over CMA France.
Because Defendants seek dismissal on personal jurisdiction grounds in addition to attacking the sufficiency of Plaintiffs' claims, the Court undertakes a more thorough analysis of Defendants' operations and contacts with the Southern District of Florida. The facts and background relevant to the determination of the Motion to Dismiss are taken from the Amended Complaint and viewed as true. Ziyadat v. Diamondrock Hosp. Co., 3 F.4th 1291, 1296 (11th Cir. 2021). Additional evidence submitted in support of the parties' personal jurisdiction arguments is considered in connection with the personal jurisdiction discussion below.
Plaintiffs are fourteen individuals asserting claims on their own behalf, in their individual capacities, and in representative capacities as personal representatives, heirs, and administrators of estates of decedents (collectively referred to as “Plaintiffs”). See Complaint [ECF No. 1]. One Plaintiff, Ms. De Fernandez, is asserting claims individually on her own behalf. [ECF No. 65 (the “Amended Complaint”) at ¶ 8]. The other thirteen Plaintiffs assert claims based on their representative capacities on behalf of Ms. De Fernandez's four siblings, all of whom are deceased. (Ms. De Fernandez and her siblings are collectively referred to herein as the “Blanco Rosell Siblings”).
As alleged in the Amended Complaint, in 1960, the Cuban Government seized, without compensation, “property and rights, whatever their nature,” related to property, as detailed below, that Plaintiffs claim belonged to the Blanco Rosell Siblings. See Am. Compl. at ¶¶ 2-4. After the seizure of their property in 1960, the Blanco Rosell Siblings all fled Cuba to the United States and became United States citizens. Id. at ¶ 5. All became United States citizens prior to March 12, 1996, the effective date of the Helms-Burton Act, but after the Cuban Government seized their property. Id. Except for Ms. De Fernandez, who is 92 years of age, all of the Blanco Rosell Siblings passed away after becoming United States citizens and prior to the filing of this lawsuit. Id.
Defendant CMA CGM S.A. (“CMA France”) is a French entity, a Societe Anonyme, organized under French Law. Am. Compl. at ¶ 26. CMA France is an international marine transportation company and, according to the Amended Complaint, one of the world's leading container carriers. Id. Plaintiffs allege Defendant CMA France operates in Florida and Cuba, both directly, as the disclosed principal on its bills of lading, and indirectly, through subsidiaries. Id. According to Plaintiffs, CMA France was the carrier on nearly 700 bills of lading for trafficking voyages from the United States to the Port of Mariel, Cuba. Id. at ¶ 28. Plaintiffs also allege CMA France solicits customers in Florida and throughout the United States with offers of “door-to-door service” using “Through Bills of Lading,” which cover transportation on both land and sea. Id. at ¶¶ 29, 31.
The Amended Complaint alleges that vessels operated by CMA France call at the Terminal de Contenedores del Mariel[2] (“TCM”), which is part of the Port of Mariel within the Zona Especial de Desarrollo Mariel[3] (“ZEDM”) in the Bay of Mariel, Cuba. Plaintiffs allege that, by “calling” (offloading or loading containers at a port of call) at the TCM, CMA France engages in commercially beneficial transactions and other commercial activities at the Port of Mariel and surrounding areas, including the ZEDM, from which it has profited. See id. at ¶¶ 33-37. In the Amended Complaint, Plaintiffs explain that when CMA France's ships call at the TCM in the Port of Mariel, “CMA France uses, benefits and profits from the logistics facilities built directly on Plaintiffs' Confiscated Property,” and that “CMA France's services to its customers would not be possible or profitable without the use of the logistics facility located on Plaintiffs' Confiscated Property.” Id. at ¶ 34.
The Amended Complaint also alleges that, after calling at the TCM and using the logistics facility, “CMA France delivers its cargo to its intended destination in Cuba, exploiting road and rail directly on Plaintiffs' Confiscated Property for its own commercial benefit.” Id. at ¶ 35. And, as alleged in the Amended Complaint, CMA France developed a logistics facility and warehouses at the Port of Mariel which “occupies, utilizes and exploits land that is part of the ZEDM that Cuba confiscated from the Blanco Rosell Siblings.” Id. at ¶ 36.
Plaintiffs include a photograph of a bill of lading in the Amended Complaint that shows CMA France as the carrier for a cargo shipment directly from the Port of Miami to the Port of Mariel. Id. at ¶ 38. That bill of lading indicates CMA America as the Agent for the Carrier. Id.
Defendant CMA CGM (AMERICA) LLC (“CMA America”) is a United States limited liability company organized in New Jersey with its principal place of business in Virginia. Id. at ¶ 39. According to the Amended Complaint, CMA America has transacted business in Florida since 2008 and acts as CMA France's agent for the carrying of containers from the Port of Miami to the Port of Mariel. See id. Plaintiffs allege that, along with CMA France, CMA America is part of the CMA CGM Group and traffics in Plaintiffs' Confiscated Property by acting as the agent on behalf of CMA France for the shipment of containers from the United States, including from the Port of Miami, to the Port of Mariel. Id. at ¶¶ 39-40.
According to the Amended Complaint, CMA America and CMA France offer and contract with their customers to provide all services in the United States, including Florida, and Cuba involved in the collection, storage, loading, shipment, and inland delivery of shipments from the United States to the Port of Mariel. Id. at ¶ 41.
B. The Confiscated Property
In the Amended Complaint, Plaintiffs allege the Blanco Rosell Siblings owned Maritima Mariel SA (“Maritima Mariel”), a Cuban corporation established in 1954. Id. at ¶ 84. In August 1955, the Cuban Government granted Maritima Mariel a 70-year Concession to “plan, study, execute, maintain, and exploit public docks and warehouses in the Bay of Mariel Bay, province of Pinar del Rio Province, and the construction of new buildings and works” (the “70-Year Concession”). Id. at ¶ 86. The Amended Complaint details a series of exceptional rights which Maritima Mariel was authorized to exercise in the Bay of Mariel pursuant to the 70-Year Concession. See id. at ¶ 87. Plaintiffs allege that Maritima Mariel and the 70-Year Concession are part of the property confiscated by the Cuban Government from the Blanco Rosell Siblings. Id. at ¶ 89.
In addition to the 70-Year Concession and Maritima Mariel, the Blanco Rosell Siblings...
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