Garcia-Bengochea v. Carnival Corp.
| Decision Date | 26 August 2019 |
| Docket Number | CASE NO. 1:19-cv-21725-JLK |
| Citation | 407 F.Supp.3d 1281 |
| Parties | Javier GARCIA-BENGOCHEA, Plaintiff, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Line, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Aziza F Elayan-Martinez, Roberto Martinez, Zachary Andrew Lipshultz, Stephanie Anne Casey, Lazaro Fields, Francisco Raul Maderal, Jr., Colson Hicks Eidson, Coral Gables, FL, Rodney Stuart Margol, Margol, Margol, PA, Jacksonville Beach, FL, for Plaintiff.
George J. Fowler, III, New Orleans, LA, Luis Emilio Llamas, Miami, FL, Jones Walker, LLP, Stuart Harold Singer, Boies Schiller & Flexner, Fort Lauderdale, FL, for Defendant.
ORDER DENYING CARNIVAL CORPORATION'S MOTION TO DISMISS
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 Plaintiff's 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.
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 "protect[ing] 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).
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.
On May 30, 2019, Carnival moved to dismiss Plaintiff's 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 [Plaintiff's] 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.
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 the meaning of Helms-Burton by using the docks for its commercial cruise line business. See id. at 4.
With respect to Carnival's arguments on Plaintiff's ownership of a claim to the property, Plaintiff's principal response is that Carnival "conflates [ ] an ownership interest in the confiscated property with ownership of a claim to such property." Id. at 17. According to Plaintiff, because Congress "used ‘clear and unambiguous language’ to denote its claim-specific view of Title III," a plaintiff need only allege "ownership of a claim," not ownership of the property itself. Id. And here, Plaintiff argues, the four corners of the Complaint sufficiently allege that he owns a claim to an 82.5% interest in the property. See id. at 23. Finally, Plaintiff argues that dismissal is not warranted just because his certified claim is to stock in the Cuban corporation that owned and operated the docks when they were confiscated.
To survive a motion to dismiss, a complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In ruling on a motion to dismiss, the court must accept the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. See Adinolfe v. United Techs. Corp. , 768 F.3d 1161, 1169 (11th Cir. 2014).
As an initial matter, the Court disagrees with Carnival's argument that the Complaint should be dismissed because Plaintiff did not plead around the lawful travel defense. "[A]n affirmative defense is one that admits to the complaint, but avoids liability, wholly or partly, by new allegations of excuse, justification, or other negating matters." VP Props. & Devs., LLLP v. Seneca Specialty Ins. Co. , 645 F. App'x 912, 916 (11th Cir. 2016) (internal quotation marks and citation omitted). The burden of establishing an affirmative defense rests with the defendant—the "one who claims its benefits." Meacham v. Knolls Atomic Power Lab. , 554 U.S. 84, 93, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008). "The touchstone for determining the burden of proof under a statutory cause of action is the statute itself." Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, and Stevens, P.A. , 525 F.3d 1107, 1110 (11th Cir. 2008). While the "ordinary default rule [is] that plaintiffs bear the risk of failing to prove their claims," the burden is properly placed on the defendant when certain issues "can fairly be characterized as affirmative defenses or exemptions." Id. For instance, when a statute "exempt[s] otherwise illegal conduct by reference to a further item of proof," this strongly suggests that Congress intended to create an affirmative defense. See Meacham , 554 U.S. at 93, 128 S.Ct. 2395.
Based on the text and structure of Helms-Burton, the Court holds that the lawful travel...
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