Case Information
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 21-CV-22778-RAR
ODETTE BLANCO DE FERNANDEZ
née BLANCO ROSELL , et al. ,
Plaintiffs,
v.
CMA CGM S.A. ( a/k/a CMA CGM
THE FRENCH LINE, a/k/a CMA CGM GROUP) , et al. ,
Defendants.
__________________________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING IN PART MOTION TO DISMISS
This сase presents a fact pattern increasingly familiar to American courts: the story of Cuban nationals who, following the Cuban Revolution, had their property confiscated and their lives upended. In the wake of this upheaval, many of these nationals fled Cuba and found a new home in the United States, eventually becoming citizens of this country. These now-American citizens were provided a hopeful remedy in 1996 with the passage of the Helms-Burton Act, 22 U.S.C. § 6021 et seq. , which sought to compensate them for their confiscated property. As explained below, that remedy was effectively a dead letter until 2019. Some of those who originally fled Cuba, like most of the original owners of the property subject to this litigation, died before they could bring a claim. But with the Helms-Burton Act’s civil remedy now available, plaintiffs have vigorously pursued the remedy they were promised nearly three decades ago.
Before the Court is United States Magistrate Judge Melissa Damian’s Report and Recommendation (“Repоrt”), [ECF No. 138], filed on April 30, 2023. The Report recommends that the Court grant in part and deny in part Defendants’ Combined Motions to Dismiss Plaintiffs’ Amended Complaint (“Motion to Dismiss” or “MTD”), [ECF No. 72], and deny Plaintiffs’ Motion to Stay Ruling on Collateral Estoppel (“Motion to Stay”), [ECF No. 119]. [1] See Report at 1–2. The Court, having reviewed the Report, the Motion to Dismiss, the Motion to Stay, the record, and being otherwise fully advised, it is hereby
ORDERED AND ADJUDGED that the Report, [ECF No. 138], is AFFIRMED AND ADOPTED as set forth herein.
BACKGROUND At this stage, the Court assumes the parties’ familiarity with the underlying facts of this case but will summarize the most pertinent allegations and procedural history.
I. Cuba’s Seizure of Property
Following the regime change imposed by Fidel Castro in Cuba, the government “ban[ned] [] free and fair democratic elections,” perpetuated “violations of fundamental human rights,” and continually oppressed the Cuban people through a variety of mechanisms, including confiscation of their property. 22 U.S.C. §§ 6021(2), (4), (15). As alleged in the Amended Complaint, Plaintiff Odette Blanco de Fernandez née Blanco Rosell (“Ms. Fernandez”), and her siblings Alfredo Blanco Rosell, Florentino Blanco Rosell, Enrique Blancо Rosell, and Byron Blanco Rosell (the “Blanco Rosell Siblings”) were victims of these confiscations. See Amended Complaint, [ECF No. 65] ¶¶ 2–4. Shortly after the government rose to power, it confiscated all “property and rights, whatever their nature” from the Blanco Rosell Siblings other than property considered “strictly of a personal nature.” Am. Compl. ¶ 2. To effectuate the confiscation of the Blanco Rosell Siblings’ property, the Cuban government published Resolution No. 436 in the Cuban Official Gazette on September 29, 1960, which identified both the Blanco Rosell Siblings and their property. Id. None of the Blanco Rosell Siblings were citizens of the United States when the Cuban government seized their property. Am. Compl. ¶ 5. After their property was confiscated, the Blanco Rosell Siblings fled Cuba, settled in the United States, and became United States citizens prior to March 12, 1996. Id. Ms. Fernandez, who is 92, is now the only surviving Blanco Rosell Sibling. Id.
The Cuban government confiscated two groups of property from the Blanco Rosell Siblings relevant to this action. The first consisted of a “70-Year Concession” the Cuban government previously granted to Maritima Mariel SA (“Maritima Mariel”), a Cuban corporation the Blanco Rosell Siblings equally owned. Am. Compl. ¶¶ 83–86. Granted on August 15, 1955, the 70-Year Concession allegedly allowed Maritima Mariel 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.” Am. Compl. ¶ 86. The 70-Year Concession also granted Maritima Mariel several “exceptional rights in the Bay of Mariel” enumerated in the Amended Complaint. Am. Compl. ¶ 87. Plaintiffs allege this 70-Year Concession “extend[ed] to all of Mariel Bay.” Am. Compl. ¶ 110. Both Maritima Mariel and the 70-Year Concession were subsequently confiscated by the Cuban government. Am. Compl. ¶ 89.
The second group of property relates to “several other companies” and land holdings the Blanco Rosell Siblings owned, including Compañía Azucarera Mariel S.A. (“Azucarera Mariel”). Am. Compl. ¶ 90. Azucarera Mariel owned and operated a sugar mill known as “Central San Ramón,” which the Blanco Rosell Siblings bought along with approximately 11,000 acres of land located “southeast, south and west of Mariel Bay,” that included “numerous improvements such as roads, railways, buildings, and utilities.” The Blanco Rosell Siblings also owned a farm known as “Tapia” located on the west side of Mariel Bay. Am. Compl. ¶ 93. The Cuban government confiscated all of this property. Am. Compl. ¶¶ 92–93. Eventually, the Cuban government incorporated the Blanco Rosell Siblings’ confiscated property into the Zona Especial de Desarrollo Mariel (Mariel Special Development Zone) (“ZEDM”), a “special economic zone in Cuba with its own legal structure.” Am. Compl. ¶¶ 104, 107–08. Located within the ZEDM is the Terminal de Contenedores del Mariel (Container Terminal of Mariel) (“TCM”), a “[c]ontainer [t]erminal” that “is part of the Port of Mariel” and “within the Bay of Mariel.” Am. Compl. ¶ 33.
II. The Helms-Burton Act & Instant Litigation
The story of the Blanco Rosell Siblings is far from unique. “[M]illions of [Cuban] citizens,” “thousands of United States nationals,” and “thousands more Cubans” who arrived in the United States and “later became naturalized citizens of the United States” had their property confiscated in the midst of the Cuban government “trampl[ing] on the fundamental rights of the Cuban people.” 22 U.S.C. § 6081(3). In response, Congress passed the Cuban Liberty and Democratic Solidarity Act of 1996, known as the LIBERTAD or Helms-Burton Act (also referred to as “the Act”). See Am. Compl. ¶ 1. The Helms-Burton Act was passed to ensure that “the victims of [the Cuban government’s] confiscations . . . [were] endowed with a judicial remedy in the courts of the United States” to deny “traffickers [in the confiscated property] any profits from economically exploiting Castro’s wrongful seizures.” 22 U.S.C. § 6081(11). To achieve this end, the Act provides that “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.” § 6082(a)(1)(A).
But the promise that the Helms-Burton Act would provide a civil remedy to those who had their property taken went unrealized for decades. The Act allows the President of the United States to “suspend the right to bring an action under [§ 6082] with respect to confiscated property for a period of not more than 6 months if the President determines . . . that such suspension is necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.” 22 U.S.C. § 6085(c)(1)(B). After the Helms-Burton Act was passed and signed into law, every President proceeded to suspend the right to bring claims under § 6082 every six months until May 2, 2019, when, for the first time, the Helms-Burton Act’s civil remedy finally became available. Am. Compl. ¶¶ 65–66.
Plaintiffs then instituted this action against Defendants CMA CGM S.A. (“CMA France”) and CMA CGM (AMERICA) LLC (“CMA America”), two companies engaged in international maritime transportation. See Am. Compl. ¶¶ 26, 39. As accurately reflected in the Report, CMA France and CMA America have done business in Florida and Cuba, including the parts of Mariel Bay encompassing the ZEDM and TCM as well as the surrounding areas that allegedly include the Blanco Rosell Siblings’ confiscated property. See Report at 4–6. Plaintiffs accоrdingly allege that Defendants are trafficking in the Blanco Rosell Siblings’ confiscated property in violation of the Helms-Burton Act. As Ms. Fernandez is the only surviving Blanco Rosell Sibling, the remaining claims in this action are asserted by either (1) the personal representatives of the deceased Blanco Rosell Siblings’ estates (the “Estate Plaintiffs”); and (2) those who inherited the deceased Blanco Rosell Siblings’ interests in the properties (the “Inheritor Plaintiffs”). Am. Compl. ¶¶ 8–25.
III. Seaboard Marine
Plaintiffs have not only pursued claims against CMA France and CMA America—they
have also filed a number of cases alleging violations of § 6082 of the Act.
See
MTD at 6 n.4
(collecting cases). Among these other actions is
De Fernandez v. Seaboard Marine, Ltd.
, No.
20-25176 (S.D. Fla.), where Plaintiffs also pursued claims based on the 70-Year Concession.
See
Report at 33. The
Seaboard Marine
court made two rulings relevant to the instant action. First, it
dismissed the claims of the Estate and Inheritor Plaintiffs, holding that none of these plaintiffs
acquired their claims before the statutory cutoff of March 12, 1996.
De Fernandez v. Seaboard
Marine, Ltd.
, No. 20-25176,
Then, at the summary judgment stage, the court found the geographic scoрe of the 70-Year
Concession was much narrower than Plaintiffs alleged and only encompassed “the east side of the
Bay [of Mariel]” rather than “the entire Bay.”
De Fernandez v. Seaboard Marine, Ltd.
, No.
20-25176,
IV. Motion to Dismiss & Motion to Stay
Defendants filed their Motion to Dismiss on September 27, 2022, arguing Plaintiffs fail to state a claim upon which relief can be granted for a variety of reasons more thoroughly discussed below. See generally MTD. They also argue this Court does not have personal jurisdiction over CMA France. MTD at 19–25. Finally, Defendants move to collaterally estop Plaintiffs from relitigating the scope of the 70-Year Concession in light of the final judgment in Seaboard Marine , and accordingly, seek dismissal of any claim based on the 70-Year Concession. MTD at 16–19.
After the Motion to Dismiss was filed, however, Plaintiffs reached a settlement in principle with the defendants in Seaboard Marine while that case was pending on appeal that was conditioned on the Seaboard Marine court vacating its summary judgment order and final judgment. Mot. to Stay at 1. The Seaboard Marine parties then filed an Agreed Motion to Vacate with the district court. See id. at 2. Following that, Plaintiffs filed their Motion to Stay, asking this Court to reserve adjudicating the issue of collateral estoppel until the Seaboard Marine court issued a ruling on the Agreed Motion to Vacate. See generally Mot. to Stay. The Report recommends the Court deny that request. Report at 45. Then, circumstances changed further still. After Judge Damian issued the Report, the Seaboard Marine court denied the Agreed Motion to Vacate. See Defs.’ Notice of Supplemental Authority on Defs.’ Combined Mot. to Dismiss, [ECF No. 147]. The issues presented by the Motion to Stay are now moot. The Court therefore proceeds on the merits of Defendants’ Motion to Dismiss.
LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires a “short and plain statement of the claim,”
but a complaint must set forth more than “labels and conclusions” or a mere “formulaic recitation
of the elements of a cause of action.”
Bell Atl. Corp. v. Twombly
,
This Court reviews
de novo
the determination of any disputed portions of the Magistrate
Judge’s Report.
United States v. Powell
,
ANALYSIS
I. Personal Jurisdiction
In the Motion to Dismiss, CMA France moves to dismiss the claims against it for lack of
personal jurisdiction. MTD at 19–25. The Report concludes this Court has personal jurisdiction
over CMA France and accordingly recommends the Court deny the Motion to Dismiss as to this
ground. Report at 57. CMA France does not object to that recommendation.
See generally
Defs.’
Objs. Accordingly, the Court reviews this conclusion only for cleаr error and finds none.
Macort
,
II. Helms-Burton Act Claims
The Helms-Burton Act provides a right of action against “any person that . . . traffics in
property which was confiscated by the Cuban Government on or after January 1, 1959.” 22 U.S.C.
§ 6082(a)(1)(A). “[A]ny United States national who owns the claim to such property” may pursue
an action against those who traffic in the confiscated property. But the Act provides that when
the property was confiscated before March 12, 1996, the United States national must have
“acquire[d] ownership of the claim [to the property] before March 12, 1996.” § 6082(a)(4)(B).
To state a claim under the Helms-Burton Act, a plaintiff must allege (1) the Cuban government
confiscated the plaintiff’s property after January 1, 1959; (2) the defendant trafficked in the
confiscated property after the effective date of the Act; (3) the plaintiff is a United States national;
and (4) the plaintiff owns a claim to the confiscated property.
See Garcia-Bengochea v. Carnival
Corp.
,
Defendants move to dismiss Plaintiffs’ Helms-Burton Act claims on several grounds. They argue that (1) the claims of the Inheritor and Estate Plaintiffs are barred because these plaintiffs did not acquire their claims to the property until after the statutory cutoff of March 12, 1996 (just as the Seaboard Marine court concluded); (2) Plaintiffs cannot state a § 6082 trafficking claim because the Blanco Rosell Siblings were not United States nationals when their property was confiscated; (3) a plaintiff who only had a shareholder interest in a company that owned confiscated property cannot maintain a Helms-Burton Act claim; (4) Plaintiffs must allege the confiscations were wrongful, which Defendants equate to being in violation of international law; and (5) Plaintiffs’ claims relating to the 70-Year Concession must be dismissed because the Seaboard Marine court previously determined the scope of the 70-Year Concession and found it did not extend to the portions of Mariel Bay at issuе here. See generally MTD. The Court will address each argument in turn. But before proceeding, the Court notes that Defendants frequently couch some of their challenges with references to “standing.” See, e.g. , MTD at 9.
Courts have routinely rejected standing arguments where a defendant is simply attacking
the merits of a Helms-Burton Act claim.
See Garcia-Bengochea
,
a. Claims of the Inheritor and Estate Plaintiffs First, Defendants argue the Inheritor and Estate Plaintiffs cannot pursue claims under the Helms-Burton Act because they did not acquire claims to the confiscated property until after March 12, 1996. MTD at 7–9. The Report, relying on the Eleventh Circuit’s recent decision in Garcia-Bengochea , agrees. Report at 16–17. Plaintiffs object to this conclusion only as it relates to the Estate Plaintiffs. Because they did not object to the Report’s conclusion as to the Inheritor Plaintiffs, the Court reviews that conclusion only for clear error. [2]
Where the Cuban government confiscated property before March 12, 1996, a United States
national cannot bring a § 6082 trafficking claim based “on a claim to the confiscated property
unless such national acquires ownership of the claim before March 12, 1996.” 22 U.S.C.
§ 6082(a)(4)(B). Whether the Inheritor and Estate Plaintiffs may maintain their claims hinges on
what the word “acquires” means in the Helms-Burton Act. In all cases involving questions of
statutory interpretation, a court “begin[s] where [it] must—with the text.”
Garcia-Bengochea
, 57
F.4th at 930. When determining the meaning of a statute, courts “proceed from the understаnding
that unless otherwise defined, statutory terms are generally interpreted in accordance with their
ordinary meaning.”
Barton v. U.S. Att’y Gen.
,
The Report correctly observes that the Eleventh Circuit recently agreed with the Fifth
Circuit and squarely held a person who inherits a claim to confiscated property does not acquire
the claim to the property until the inheritance occurs. Report at 17;
Garcia-Bengochea
, 57 F.4th
at 930–31. Therefore, where a plaintiff inherits a claim to property the Cuban government
confiscated before March 12, 1996, the plaintiff must have inherited the claim before that date to
state a clаim arising under § 6082.
See
22 U.S.C. § 6082(a)(4)(B);
see also Garcia-Bengochea
,
While the Report does not separately address the claims of the Estate Plaintiffs, the Court
also agrees their claims must be dismissed. “In the absence of an expression of contrary intent,
the survival of a federal cause of action is a question of federal common law.”
United States v.
NEC Corp.
,
The Estate Plaintiffs rely on a single section of Florida law that defines an “[e]state” as
“the property of a decedent that is the subject of administration.” Fla. Stat. § 731.201(14). Seizing
on this language, the Estate Plaintiffs seem to argue their claims are still the property of the
deceased Blanco Rosell Siblings rather than the claims of those who inherited the claims or the
claims оf the estates as separate legal entities. MTD Resp. at 3–5. There appear to be conflicting
authorities on whether under Florida law the property in an estate is vested in the estate itself or
has vested in the person who inherits it.
Compare, e.g.
, Fla. Stat. § 732.101(2); Fla. Stat. § 732.514,
with Depriest v. Greeson
,
Plaintiffs invoke the Due Process Clause of the Fifth Amendment as a last resort, but the
Court finds this issue inadequately presented.
[3]
The Fifth Amendment’s Due Process Clause
applies “the principles of equal protection” found in the Fourteenth Amendment against the federal
government.
See Swisher Int’l, Inc. v. Schafer
,
The Inheritor and Estate Plaintiffs argue that interpreting the statute to disallow estates or inheritors from bringing claims would violate the equal protection component of the Fifth Amendment’s Due Process Clause because it would only allow natural persons to bring claims during their lives yet allow corporations to hold their claims “in perpetuity.” MTD Resp. at 4. While Plaintiffs are unclear about which equal protection theory they rely on, they seemingly assert a disparate impact theory since the text of the statute is clearly neutral on its face. See 22 U.S.C. § 6082(a)(4)(B).
But Plaintiffs’ sole citation in support of their equal protection argument is about equal
protection broadly and does not address a disparate impact theory.
See
MTD Resp. at 4;
see
generally Bankers Life & Cas. Co. v. Crenshaw
,
And while the Court does not reach the merits of the argument, it expresses severe doubts
about this position given that Plaintiffs simply rely on the fact that entities, as a practical matter,
can outlive natural persons. Both natural persons and entities are endowed with the same civil
remedy, and all of the limitations on bringing claims apply equally. Additionally, because
Plaintiffs do not allege discrimination on the basis of a suspect class, the statute would only have
to pass rational basis review.
Checker Cab Operators, Inc. v. Miami-Dade Cnty.
,
Accordingly, all claims in this action except for those asserted by Plaintiff Odette Blanco de Fernandez née Blanco Rosell must be dismissed bеcause she is the only Plaintiff that acquired ownership of her claim before March 12, 1996. [4]
b. Whether Plaintiffs Must Have Been U.S. Nationals at the Time of Confiscation Defendants next move to dismiss all claims because the Blanco Rosell Siblings were not United States nationals at the time their property was confiscated. MTD at 9–10. The Report recommends the Court deny the Motion on this ground because the Helms-Burton Act does not require that plaintiffs be United States nationals at the time the Cuban government confiscates their property. Report at 25. The Court agrees with the Report.
Again, issues of statutory interpretation “must begin, and usually end[], with the text of the
statute.”
United States v. Stevens
,
Here, the text of the statute is clear: there is nothing requiring a plaintiff to be a United
States national at the time the plaintiff’s property is confiscated by the Cuban govеrnment. The
statute provides that one who traffics in confiscated property is “liable to
any United States
national
who owns the claim to such property.” 22 U.S.C. § 6082(a)(1)(A) (emphasis added).
“When ‘a statute includes an explicit definition’ of a term, ‘[the court] must follow that
definition[.]’”
Van Buren v. United States
,
Beginning with the text of the statute, Congress’s use of the expansive phrase “any United
States citizen” shows it clearly meant to provide a civil remedy to plaintiffs who are now United
States citizens but were not when their property was confiscated. These plaintiffs are just as much
United States citizens as those who were already citizens when the Cuban government confiscated
the relevant property.
See Cent. Santa Lucia, L.C. v. Expedia Grp.
, No. 22-cv-00367-CFC, ECF
No. 34, at 3 (D. Del. June 22, 2023) (“Nothing in the Helms-Burton Act, however, requires a
plaintiff to have beеn a United States national at the time Cuba confiscated the property in
question.”);
De Fernandez v. Crowley Holdings, Inc.
, No. 21-20443,
Defendants cite
Regueiro v. American Airlines, Inc.
, No. 19-23965, 2022 WL 2399748
(S.D. Fla. May 20, 2022),
report and recommendation adopted in part
,
To be clear, courts may consider prefatory material, such as the findings in a statute, as a
“permissible indicator” of a statute’s meaning. A NTONIN S CALIA & B RYAN A. G ARNER , R EADING
L AW : T HE I NTERPRETATION OF L EGAL T EXTS § 34, at 217 (2012). Courts must be mindful,
however, that prefatory material “does not limit or expand the scope of the operative clause” of a
statute.
See United States v. Bryant
,
But the findings are not inconsistent with the text of § 6082. In its findings, Congress clearly stated that “United States nationals who were 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.” 22 U.S.C. § 6081(11). Plaintiffs who only became United States citizens after their property was seized are clearly still “United States nationals who were the victims of . . . Castro’s wrongful seizures.” Id. The Court declines Defendants’ invitation to read these nationals out of the plain language of the statute—as even the findings reference them. See also id. § 6081(3)(B)(iii) (recognizing the existence of “Cubans who claimed asylum in the United States as refugees because of persecution and later became naturalized citizens of the United States”). Accordingly, while the Court need not consider the findings, having “return[ed] to the prefatory” provisions of the statute, the Court is assured that its “reading of the operative clause is consistent with the announced purpose” of the Helms-Burton Act. [5] Heller , 554 U.S at 578.
The Court’s conclusion as to the text of the statute is further bolstered by the principle that courts must interpret related statutes in harmony with each other. See S CALIA & G ARNER , supra , § 39, at 252. The International Claims Settlement Act of 1949 (“ICSA”), as amended, allows a district court adjudicating a § 6082 claim to refer questions regarding the “amount and ownership of a claim by a United States national . . . whether or not the United States national qualified as a national of the United States (as defined in section 1643a(1) of this title) at the time of the action by the Government of Cuba .” 22 U.S.C. 1643 l (emphasis added); see also Garcia-Bengochea v. Carnival Corp. , 407 F. Supp. 3d 1281, 1290 (S.D. Fla. 2019) (looking to the ICSA when interpreting the Helms-Burton Act). Clearly, this language contemplates that those who were not United States nationals at the time their property was taken could later become citizens of the United States and bring a claim under the Helms-Burton Act. Defendants resist this conclusion by arguing this provision merely reconciles the fact that the Helms-Burton Act and ICSA diffеr on which legal entities qualify as United States nationals. MTD Reply at 4–5; compare, 22 U.S.C. § 1643a(1), with id. § 6023(15)(B).
While this language might reconcile those provisions, nothing in the statute indicates this is its only function. It also addresses a significant limitation on § 1643b(a) claims for property loss, which can only be brought against Cuba if “the property on which the claim was based was owned . . . by a national of the United States on the date of the loss .” Id. § 1643c(a) (emphasis added). Section 1643 l , then, clarifies that regardless of this limitation on § 1643b(a) claims, a district court can still certify questions regarding a § 6082 claim’s amount and ownership when the property was not owned by a United States national at the time it was confiscated.
Finally, Defendants argue that, assuming shareholders can bring claims under the Act, Plaintiffs are still precluded from maintaining their claims because the Blanco Rosell Siblings held interests in Cuban corporations. MTD at 10. As the argument goes, a plaintiff who held property through Cuban entities should not be able to sue under the Act because the entity itself would not be able to bring a trafficking claim. Id. Defendants rely on the general legal principle that “[a] shareholdеr’s rights are derived from and are not greater than the rights of the entities from which those rights derive.” But as discussed below, shareholder-plaintiffs are suing on the basis of their own claims to confiscated property—not claims held by the entities which directly owned the property. Defendants’ reliance on this hornbook law is therefore misplaced. [6] The Court adopts the Report’s recommendation to deny the Motion to Dismiss on this ground.
c. Whether Shareholders May Maintain a Claim Defendants’ next argument is that a United States national who only had an indirect—or shareholder—interest in confiscated property by way of an entity that directly owned the property cannot state a § 6082 claim. MTD at 10–14. This would preclude all claims brought in this action, because the Blanco Rosell Siblings owned all of the relevant property through entities that were confiscated by the Cuban government. Am. Compl. ¶¶ 84–88, 92–93. Seemingly every court to address this issue has rejected this interpretation, and the Court joins them.
After the Cuban government confiscated a person’s property, the person’s “ownership
rights” were “extinguish[ed].”
See Glen
,
There is nothing in the text of the statute, however, that provides this limitation. Because
the statute does not define the terms “claim” and “claim to,” the Court must ascertain their ordinary
meanings by “look[ing] to dictionary definitions for guidance.”
In re Walter Energy, Inc.
, 911
F.3d 1121, 1143 (11th Cir. 2018). The plain meaning of the word “claim” is broad enough to
encompass more than direct ownership.
See Garcia-Bengochea
,
Other considerations make clear this is the correct interpretation of the statute. Looking
again to the ICSA, a “claim” for property loss against the Cuban government may be brought based
on property a person “owned wholly or partially, directly or indirectly.” 22 U.S.C. § 1643c(a).
The fact shareholders may bring ICSA claims strongly supports they may also bring Helms-Burton
Act claims.
See
S CALIA & G ARNER ,
supra
, at 252. But Defendants try to juxtapose this provision
of the ICSA with § 6082 and argue that because the ICSA explicitly references indirect ownership,
the Helms-Burton Act must only allow claims based on direct ownership. MTD at 11. Defendants
have it backwards. Where a statute is silent on an issue, courts must “construe [the statute’s]
silence as exactly that: silence.”
EEOC v. Abercrombie & Fitch Stores, Inc.
,
The Court also agrees with the
Garcia-Bengochea
court’s observation that Defendants’
interpretation of the statute “would substantially undermine Congress’s goal of deterring
trafficking” because it would completely shield defendants who traffic in property that was held
by Cuban entities from liability.
Garcia-Bengochea
,
The Court is also unрersuaded by the arguments Defendants advance in their attempt to
escape this conclusion. First, Defendants cite to
Dole Food Company v. Patrickson
,
But this conclusion relied on the text of the FSIA, which made clear that Congress enacted
the statute with corporate law principles in mind.
See id.
at 474 (“In issues of corporate law
structure often matters. It is evident from the Act’s text thаt Congress was aware of settled
principles of corporate law and legislated within that context.”). It was “evident” Congress
legislated with an eye to the corporate form because the FSIA uses terms like “shares” and
“separate legal person, corporate or otherwise.” (quoting 28 U.S.C. §§ 1603(b)(1)–(2)). In
contrast, here “Congress used the broadly understood term ‘claim,’ combined [w]ith colloquial
language such as the ‘rightful owners’ and ‘victims of these confiscations’ in the congressional
findings,” indicating it did not intend for general corporate legal principles to cabin the
Helms-Burton Act.
See Garcia-Bengochea
,
Defendants next point to a stray provision in Title II of the Act, which governs sanctions against the Cuban government. MTD at 12. This provision requires the President to consider whether a government in Cuba has committed to return confiscated property (or compensation for it) “to United States citizens (and entities which are 50 percent or more beneficially owned by United States citizens) ” when determining if a “transition government in Cuba is in power.” 22 U.S.C. § 6065(b)(2)(D) (emphasis added). By focusing on the emphasized language, Defendants mistakenly argue Title II provides the only remedy available to shareholders. But the same provision also references United States citizens, a group that is endowed with a civil remedy under Title III, so it is clearly not meant to limit the remedies offered by § 6082. This provision simply outlines a factor the President must consider when determining whether the appropriate conditions for lifting the embargo have been met. It does no more than that.
Having thoroughly examined the plain text of the statute and additional evidence of the statute’s meaning, the Court must reject Defendants’ interpretation. In line with every court to have addressed this issue, the Court holds that those who indirectly owned property may maintain a trafficking claim under § 6082. See, e.g. , Central Santa Lucia , No. 22-cv-00367-CFC, ECF No. 34, at 3 (“[N]othing in the text of the statute requires that a plaintiff in a § 6082(a)(1) action have a direct ownership interest in the confiscated property.”); Garcia-Bengochea , 407 F. Supp. 3d at 1289–90. [7] Accordingly, the Court agrees with the Report’s recommendation to deny the Motion on this ground.
d. Whether a Plaintiff Must Allege the Confiscation was “Wrongful” Defendants’ final statutory interpretation argument is their least well taken: that plaintiffs must plead their property was “wrongfully confiscated.” MTD at 14–16. Defendants appear to argue that when a state confiscates property within its borders it is only “wrongfully confiscated” when such action violates international law. See id.
As the Report correctly states, this is not required by the Helms-Burton Act. The text of
§ 6082 only requires the property to have been “confiscated by the Cuban Government on or after
January 1, 1959.” 22 U.S.C. § 6082(a)(1)(A). Nothing in the statute’s definition of “[c]onfiscated”
states that the taking must have violated international law. § 6023(4). The Court must accept
this silence, “take the provision as Congress wrote it, and neither add words to nor subtract them
from it.”
United States v. Garcon
,
While the Court finds no reason to resort to the legislative findings in light of the statute’s plain text, it notes they are not to the contrary. Defendants make much of the fact these findings repeatedly use the term “wrongful” when referring to the confiscations. See, e.g. , 22 U.S.C. § 6081(2) (referring to “[t]he wrongful confiscation or taking of property belonging to United States nationals by the Cuban Government”); id. § 6081(6)(B) (referring to “property wrongfully confiscated by the Cuban Government”). Defendants do not justify, however, why these references require a violation of international law. Indeed, neither the plain text of the operative the claim to the property that replaced the previous ownership interest. See Glen , 450 F.3d at 1255. Nevertheless, nothing in the text indicates only those who directly owned property received claims to the property, and the conclusion is therefore the same.
provision nor the findings reference violations of international law at all.
[8]
Congress made it
unlawful to traffic in property which was confiscated by the Cuban government on or after January
1, 1959 and specifically dеfined what constitutes confiscated property. This might have captured
the universe of confiscations Congress found “wrongful.” Or, Congress may have simply provided
a legislative remedy that went “beyond the specific ill that prompted the statute.” S CALIA &
G ARNER ,
supra
, at 219. Those are its decisions to make. No matter which (if either) is the case,
there is no occasion to “limit . . . the scope of the operative clause” in light of these findings,
Bryant
, 996 F.3d at 1260 (quoting
Heller
, 554 U.S. at 578), because “the operative clause is
consistent” with them.
See Heller
,
Defendants’ invocation of the domestic takings rule is unpersuasive, and in fact,
demonstrates why the Helms-Burton Act does not require a violation of international law. The
domestic takings rule is a principle of international law that provides “what a country does to
property belonging to its own citizens within its own borders is not the subject of international
law.”
Federal Republic of Germany v. Philipp
,
Defendants end their argument by challenging Plaintiffs’ allegations regarding the seizures of the Blanco Rosell Siblings’ property and the Cuban government’s purported justification for it. MTD at 15–16. These remaining arguments clearly present factual issues the Court cannot resolve on a motion to dismiss. [9] Accordingly, the Motion to Dismiss is denied as to this ground.
e. Collateral Estoppel of 70-Year Concession and Motion to Stay Finally, the Court addresses Defendants’ collateral estoppel argument as to the 70-Year Concession referenced in the Amended Complaint. Plaintiffs have previously litigated the geographic scope of the 70-Year Concession, and the Seaboard Marine court found the scope of the 70-Year Concession was narrower than Plaintiffs allege. Seaboard Marine , 2022 WL 3577078, at *12. Therefore, Defendants seek to preclude Plaintiffs from relitigating that issue here and request the Court dismiss the claims based on it. Plaintiffs subsequently filed their Motion to Stay, asking the Court to defer ruling on this issue until the Seaboard Marine court adjudicated the Agreed Motion to Vacate filed in Seaboard Marine . While the Report recommended denying the Motion to Stay on the merits, the Seaboard Marine court has now denied the Agreed Motion to Vacate. Accordingly, the Court must instead deny the Motion to Stay as moot. [10] Plaintiffs try to prevent the application of collateral estoppel on several grounds: (1) that because collateral estoppel wоuld not dismiss an entire claim it is inappropriate to raise in a motion filed pursuant to Rule 12(b)(6); (2) that collateral estoppel is not “apparent on the face of the Amended Complaint”; (3) that this issue should not be decided until the Seaboard Marine appeal is resolved; and (4) that the relevant findings of the Seaboard Marine court are conclusions of law not entitled to preclusive effect. MTD Resp. at 15–18. The Report recommends that the Court reject all of these arguments. Report at 35–41.
Plaintiffs’ only objection argues the Court should not apply collateral estoppel to the issue of the 70-Year Concession because the Seaboard Marine court decided the issue based on the “plain text” of the 70-Year Concession, Seaboard Marine , 2022 WL 3577078, at *12, and the issue was “not heavily litigated and was not the subject of significant briefing.” Pls.’ Objs. at 13 (emphasis omitted). The law, however, does not require that an issue be “heavily litigated”—only that it was “actually litigated.” CSX Transp., Inc. v. Brotherhood of Maint. of Way Emps. , 327 F.3d 1309, 1317 (11th Cir. 2003). This issue was obviously actually litigated in Seaboard Marine , and therefore that requirement is met. See Seaboard Marine , 2022 WL 3577078, at *9–12 (deciding the same issue). And while the Seaboard Marine court ultimately decided this issue based on the “plain text” of the 70-Year Concession, id. at *12, the Court agrees with the Report that a review of the Seaboard Marine record reflects this issue was indeed extensively litigated by the Seaboard Marine parties prior to that determination. Having disposed of this single objection, the Court reviews the rest of the Report regarding the applicability of collateral estoppel for clear error. There is none. The Court agrees Plaintiffs cannot relitigate their claims related to the 70-Year Concession.
CONCLUSION In sum, the Court, having conducted a de novo review of the Report’s findings identified in Defendants’ Objections and Plaintiffs’ Objections, and having reviewed all other sections of the Report for clear error, it is hereby
ORDERED AND ADJUDGED that the Report, [ECF No. 138], is AFFIRMED AND ADOPTED as follows:
1. Defendants’ Motion to Dismiss, [ECF No. 72], is GRANTED IN PART AND DENIED IN PART .
2. Plaintiffs’ Motion to Stay, [ECF No. 119], is DENIED AS MOOT .
3. All claims other than those asserted by Plaintiff Odette Blanco de Fernandez née Blanco Rosell are DISMISSED with prejudice .
4. Any claims asserted by Plaintiff Odette Blanco de Fernandez née Blanco Rosell based upon the 70-Year Concession referenced in the Amended Complaint are DISMISSED with prejudice .
5. Defendants shall file an Answer to the Amended Complaint that addresses any remaining claims within fourteen (14) days of the date of this Order.
DONE AND ORDERED in Miami, Florida, this 20th day of July, 2023. _________________________________ RODOLFO A. RUIZ II UNITED STATES DISTRICT JUDGE
Notes
[1] Both motions have been extensively briefed and are ripe for review. See Pls.’ Opp’n to Defs.’ Combined Mots. to Dismiss Pls.’ Am. Compl. (“MTD Resp.”), [ECF No. 77]; Defs.’ Reply Supporting Combined Mot. to Dismiss Am. Compl. (“MTD Reply”), [ECF No. 79]; Defs.’ Opp’n to Pls.’ Mot. to Stay Ruling on Collateral Estoppel, [ECF No. 125]; Pls.’ Reply in Supp. of Mot. to Stay Ruling on Collateral Estoppel, [ECF No. 130]. The parties submitted objections to the Report (“Plaintiffs’ Objections” and “Defendants’ Objections,” respectively), see [ECF Nos. 142, 144], as well as responses to the other side’s Objections, [ECF Nos. 145–46]. Additionally, the parties have submitted multiple Notices of Supplemental Authority and related responses for the Court’s consideration. See [ECF Nos. 123, 127, 136–37, 147–50].
[2] In their Motion to Dismiss, Defendants also argue the Estate and Inheritor Plaintiffs should be collaterally
estopped from relitigating whether they can maintain a Helms-Burton Act trafficking claim in light of
Seaboard Marine
. MTD at 16–19;
see Seaboard Marine
,
[3] Plaintiffs note in their Objections that the Report does not address this argument. Pls.’ Objs. at 15; see generally Report.
[4] While only Plaintiff Odettee Blanco de Fernandez née Blanco Rosell’s claims may proceed, the remainder of the Court’s analysis applies equally to all claims asserted in this action. The Court will therefore continue to refer to Plaintiffs collectively.
[5] For similar reasons, the Court is not persuaded by the Eleventh Circuit’s statement in
Glen v. Club
Mediterranee, S.A.
,
[6] This argument also seems unrelated to the fact the Blanco Rosell Siblings were not United States nationals when their property was confiscated, because it would equally preclude claims brought by a person who was a United States national at the time of confiscation but who owned the property through a Cuban entity.
[7] Some courts have implied § 6082 plaintiffs still own the confiscated property and that requiring direct ownership would delete the phrase “the claim to such” from the statute. See Seaboard Marine , 2022 WL 3577078, at *6. But a proper § 6082 plaintiff does not own confiscated property—the plaintiff now owns
[8] The only reference to international law in 22 U.S.C. § 6081 instead states that “[i]nternational law recognizes that a nation has the ability to provide for rules of law with respect to conduct outside its territory that has or is intended to have substantial effect within its territory,” seemingly justifying Congress’s authority to pass the Helms-Burton Act. Id. § 6081(9).
[9] Defendants slightly retool their argument in their Objections, stating Plaintiffs “fail[] to plead facts
plausibly showing ‘adequate and effective compensation’ was due for such a confiscation.” Defs.’ Objs. at
16–17. First, the Court does not need to entertain this new argument.
Williams
,
[10] The Court does express doubts about the Report’s conclusion that a vacated judgment continues to have
preclusive effect in these circumstances.
See United States v. Sigma Int’l, Inc.
,