MARIO DEL VALLE, ENRIQUE FALLA, ANGELO POU, Plaintiffs-Appellants, CAROLINA FERNANDEZ, et al., Plaintiffs, versus TRIVAGO GMBH, a German Limited Liability Company, BOOKING.COM B.V., a Dutch Limited Liability Company, GRUPO HOTELERO CARIBE, CORPORACION DE COMERCIO Y TURISMO INTERNACIONAL CUBANACAN S.A., GRUPO DE TURISMO GAVIOTA S.A., RAUL DOE 1-5, MARIELA ROE 1-5, EXPEDIA, INC., et al., Defendants-Appellees.
No. 20-12407
United States Court of Appeals For the Eleventh Circuit
November 22, 2022
[PUBLISH]
Appeal from the United States District Court for the Southern District of Florida
D.C. Docket No. 1:19-cv-22619-RNS
Before JORDAN and NEWSOM, Circuit Judges, and BURKE,* District Judge.
On April 17, 2019, the Trump administration announced that it would not suspend the Cuban Liberty and Democratic Solidarity Act (known as the “Helms-Burton Act“) for the first time since its enactment in 1996. Shortly after this announcement, the cause of action created by Title III of the Helms-Burton Act became fully effective in U.S. courts. As explained in more detail below, Title III generally provides a private cause of action for United States nationals against persons who knowingly traffic in property expropriated by the Cuban government after the start of the Cuban revolution.
In this appeal we confront questions of personal jurisdiction and Article III standing in an action brought under Title III. We conclude that, based on the uncontroverted allegations in the plaintiffs’ complaint, the district court has specific jurisdiction over the defendants pursuant to
I
In January of 1959, Fidel Castro and the 26th of July Movement ousted
Congress enacted the Helms-Burton Act,
Title III of the Helms-Burton Act establishes a private right of action for “any United States national who owns the claim to [confiscated property]” against “any person that . . . traffics in [such] property.”
Under Title III, a person “traffics” in confiscated property if that person knowingly and intentionally
(i) sells, transfers, distributes, dispenses, brokers, manages, or otherwise disposes of confiscated property, or purchases, leases, receives, possesses, obtains control of, manages, uses, or otherwise acquires or holds an interest in confiscated property, (ii) engages in a commercial activity using or otherwise benefiting from confiscated property, or
(iii) causes, directs, participates in, or profits from, trafficking (as described in clause (i) or (ii)) by another person, or otherwise engages in trafficking (as described in clause (i) or (ii)) through another person,
without the authorization of any United States national who holds a claim to the property.
The plaintiffs in this case—Mario del Valle, Enrique Falla, and Angela Pou—filed suit in the Southern District of Florida under Title III against several entities that own and operate travel websites, including Booking.com BV and Booking Holdings, Inc. (the Booking Entities), and Expedia Group, Inc., Hotels.com L.P., Hotels.com GP, and Orbitz, LLC (the Expedia Entities). The plaintiffs alleged that they are U.S. nationals and living heirs to separate beach-front properties nationalized by the Cuban government after the 1959 revolution. After seizing the properties, the Cuban government built the Starfish Cuatro Palmas and the Memories Jibacoa Resort (the Resorts) on the confiscated land. Until recently, visitors could reserve lodging at the Resorts through third-party travel booking websites. According to the complaint, the Booking Entities and Expedia Entities trafficked in those properties on their travel booking websites.
The Booking Entities and Expedia Entities moved to dismiss the complaint for lack of personal jurisdiction, lack of subject-matter jurisdiction, and failure to state a claim. Notably, they did not submit any affidavits or other exhibits rebutting the jurisdictional allegations in the complaint. The personal jurisdiction challenge, therefore, was facial and not factual.
The district court dismissed the plaintiffs’ Title III claims without leave to amend, ruling that it lacked personal jurisdiction over the defendants under the relevant provisions of Florida‘s long-arm statute. See
Following a review of the record, and with the benefit of oral argument, we reverse. The plaintiffs alleged that the Booking Entities and Expedia Entities operate fully interactive travel websites that are accessible in Florida, and that Florida residents have used those websites to book accommodations at the Resorts. These allegations, which were not controverted below, establish personal jurisdiction. We also conclude that the plaintiffs have Article III standing for their Title III claims.1
II
We exercise plenary review as to the district court‘s dismissal for lack of personal jurisdiction. See Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1217 (11th Cir. 1996). We accept the factual allegations in the complaint as true to the extent that they are uncontroverted and construe all reasonable inferences in
A
Even in cases arising under federal law, “[f]ederal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons.” Daimler AG v. Baumann, 571 U.S. 117, 125 (2014) (citing
The operative complaint here set out the following allegations in support of the exercise of personal jurisdiction over the Booking Entities and Expedia Entities:
- The websites of the Booking Entities and Expedia Entities “are fully-interactive websites that have robust internet e-business capabilities. They have worldwide reach and are fully accessible in Florida.”
- Florida residents could—and did—use the websites of the Booking Entities and Expedia Entities to book accommodations at the Resorts.
- The Booking Entities and Expedia Entities promote their websites and the ability to book lodgings at the Resorts on their websites through banner ads directed at Florida residents, follow-up emails sent to Florida residents who have searched for the Resorts or other geographically proximate hotels, and search engine optimization (SEO) efforts intended to maximize performance on search engine results pages.
- In addition to the direct benefit of “receiving commissions or other fees for the booking” of the Resorts, the Booking Entities and Expedia Entities “also derive an indirect benefit” by “receiving advertising revenues driven by or related to” the web traffic generated through their offering of the ability to book lodging at the Resorts.
- “A substantial part” of the Booking Entities’ and Expedia Entities’ “business and revenue derives from their Florida offices.”
D.E. 50 at ¶¶ 13, 15, 16, 39, 49-51, 58-59.
B
With respect to the first step of the personal jurisdiction analysis, we begin (and end) with
We have consistently held that, under Florida law, a nonresident defendant commits a tortious act in Florida by performing an act outside the state that causes injury within Florida. See Posner v. Essex Ins. Co., 178 F.3d 1209, 1216 (11th Cir. 1999); Licciardello v. Lovelady, 544 F.3d 1280, 1283-84 (11th Cir. 2008); Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1353 (11th Cir. 2013). See also Internet Solutions Corp. v. Marshall, 39 So. 3d 1201, 1216 (Fla. 2010) (holding that a nonresident defendant commits the tortious act of defamation in Florida for purposes of Florida‘s long-arm statute when its website containing defamatory statements is accessed in Florida). A nonresident defendant need not be physically present in Florida to commit a tortious act there. See Tufts v. Hay, 977 F.3d 1204, 1211 (11th Cir. 2020); Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002).
In Louis Vuitton, we held that a nonresident defendant committed a tortious act in Florida under
Louis Vuitton did not rely solely on the website‘s accessibility in Florida as the basis for the exercise of specific personal jurisdiction, but also on the allegation that the defendant “caused injury in Florida . . . because [his] trademark infringing goods . . . were sold to Florida customers through that website.” Louis Vuitton, 736 F.3d at 1354. In other words, allegations regarding the sale of infringing goods to Florida residents through the accessible website sufficed to establish specific personal jurisdiction under
Under Title III, a person traffics in confiscated property when he or she knowingly and intentionally engages in a commercial activity using or otherwise benefiting from the confiscated property. See
The Florida Supreme Court‘s decision in Internet Solutions supports our conclusion. That case held that a nonresident defendant commits a tortious act in Florida under
The same principle applies here. The Booking Entities and Expedia Entities allegedly trafficked in the confiscated properties by profiting from web traffic generated by Florida residents’ interest in the Resorts and from reservations made by Florida residents at the Resorts through their commercial websites—commercial activities using or otherwise benefiting from the confiscated properties. At the very least, some of the alleged trafficking took place when Florida residents accessed the websites and made reservations at one or more of the Resorts through those websites. It is the Florida residents’ booking of accommodations at the Resorts through the websites—the material communicated “into” Florida—that gives rise to the plaintiffs’ trafficking claims under Title III and provides for specific personal jurisdiction under
C
As explained above, the complaint‘s allegations satisfied the requirements for specific jurisdiction pursuant to
The Due Process Clause of the
The first prong—which addresses the concept of relatedness—focuses on the “causal relationship between the defendant, the forum, and the litigation.” Fraser, 594 F.3d at 850 (internal quotation marks omitted). Importantly, the Supreme Court recently rejected the contention that specific jurisdiction may attach only when the defendant‘s forum conduct directly gave rise to the plaintiff‘s claims. See Ford Motor Co., 141 S. Ct. at 1026-27 (“[W]e have never framed the specific jurisdiction inquiry as always requiring proof of causation—i.e., proof that the plaintiff‘s claim came about because of the defendant‘s in-state conduct.“).
This prong is readily met here. Though direct causation is not required, the plaintiffs’ Helms-Burton Act claims arise at least in part directly out of the contacts of the Booking Entities and the Expedia Entities with Florida—the promotion targeted at and directed to Florida residents, the accessing of their websites by Florida residents, and the use of those websites by some Florida residents to book accommodations at the Resorts. To borrow the language of Louis Vuitton, the ties of the Booking Entities and Expedia Entities “to Florida . . . involve the advertising [and] selling” of accommodations at the Resorts to Florida residents. 736 F.3d at 1356.
As to the second prong—which concerns purposeful availment—there are two applicable tests: the effects test and the minimum contacts test. See Calder v. Jones, 465 U.S. 783, 790 (1984); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776 (1984). We discuss both below.
Under the effects test, a nonresident defendant‘s single tortious act can establish purposeful availment without regard to whether the defendant had any other contacts with the forum state. See Lovelady, 544 F.3d at 1285. The test is met when the tort was intentional, aimed at the forum state, and caused harm that the defendant should have anticipated would be suffered in the forum state. See id. at 1285–86, 1287–88. In Lovelady, for example, we held that the defendant‘s use of the Florida plaintiff‘s trademarked name and picture on a website accessible in Florida satisfied the effects test for personal jurisdiction because it entailed “the commission of an intentional tort aimed at a specific individual in the forum whose effects were suffered in the forum.” Id. at 1288.
The minimum contacts test assesses the nonresident defendant‘s contacts with the forum state and asks whether those contacts (1) are related to the plaintiff‘s cause of action; (2) involve some act by which the defendant purposefully availed himself of the privileges of doing business within the forum; and (3) are such that the defendant should reasonably anticipate being haled into court in the forum. See Louis Vuitton, 736 F.3d at 1357. In performing the minimum contacts analysis, we identify all contacts between the nonresident defendant and the forum state and ask whether, individually or collectively, those contacts satisfy the relevant criteria. See id. As noted earlier, the nonresident‘s contact with the forum need not give rise to the plaintiff‘s claim. See Ford Motor Co., 141 S. Ct. at 1026-27.
We held in Louis Vuitton, 736 F.3d at 1357-58, that a nonresident defendant was subject to jurisdiction in Florida in accordance with due process under both the effects test and the minimum contacts test. As explained earlier, the defendant in that case had “purposefully solicited business from Florida residents through the use of at least one, fully interactive website” and had sold allegedly infringing goods to Florida residents through that website. See id.
Given the allegations in the plaintiffs’ complaint, we similarly conclude here that both the effects test and the minimum contacts test are satisfied. As a result, we do not have to choose one test over the other with respect to purposeful availment.
First, the Florida contacts of the Booking Entities and Expedia entities are sufficiently related to the plaintiffs’ claims. Although direct causation between the nonresident‘s forum contacts and the plaintiff‘s cause of action is not required, see Ford Motor Co., 141 S. Ct. at 1026-27, the relevant claims here—alleged trafficking in confiscated properties under Title III of the Helms-Burton Act—are based in part on those contacts (i.e., the booking of accommodations at the Resorts by Florida residents on the defendants’ interactive commercial websites). What is more, the effects of the intentional conduct of the Booking Entities and Expedia Entities were felt in Florida, where all three plaintiffs reside.
Second, the Booking Entities and Expedia Entities purposefully availed themselves of Florida in such a way that they could reasonably foresee being haled into court there. As in Louis Vuitton, 736 F.3d at 1357-58, this is not a case of a nonresident defendant merely operating an interactive website that is accessible in Florida. As alleged by the plaintiffs, the Booking Entities and Expedia Entities promoted their websites and the ability to book lodging at the Resorts on their websites through banner ads directed at Florida residents, follow-up direct emails sent
These contacts, taken collectively, establish that the Booking Entities and Expedia Entities purposefully availed themselves of the privileges of doing business in Florida and could reasonably foresee being sued there. We note, as well, that according to the complaint a substantial part of the business and revenue of the Booking Entities and Expedia Entities derives from their Florida offices. See id. at 1358 (“[P]urposeful availment for due process was shown here because, in addition to his fully interactive website . . . accessible in Florida, Mosseri had other contacts with Florida—through selling and distributing infringing goods through his website to Florida consumers and the cause of action here derives directly from those contacts.“) (emphasis deleted). See also Curry v. Revolution Laboratories, LLC, 949 F.3d 385, 399-401 (7th Cir. 2020) (defendant‘s operation of interactive commercial website accessible in Illinois, plus sales of infringing products to and communications with Illinois residents, established minimum contacts for purposes of due process); Thomas A. Dickerson et al., Personal Jurisdiction and the Marketing of Goods and Services on the Internet, 41 Hofstra L. Rev. 31, 49 (2012) (“[T]he highest level of travel website interactivity, involving the purchase of travel services on the website together with other business contacts with the forum, would provide a sufficient [constitutional] basis for jurisdiction.“).
That leaves the “fair play and substantial justice” prong, which considers (1) “the burden on the defendant“; (2) “the forum‘s interest in adjudicating the dispute“; (3) “the plaintiff‘s interest in obtaining convenient and effective relief“; and (4) “the judicial system‘s interest in resolving the dispute.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980). The Booking Entities and Expedia Entities, which have the burden on this prong, have not argued that they would be burdened by having to litigate the case in Florida, much less offered any evidence to that effect. The other factors, moreover, support the exercise of personal jurisdiction. Florida has a strong interest in adjudicating this dispute given that Florida residents allegedly used the websites of the Booking Entities and Expedia Entities to make reservations at the Resorts. And the plaintiffs, as Florida residents, have an interest in litigating this case in their chosen home forum. Florida has “significant interests at stake,” including “providing [its] residents with a convenient forum for redressing injuries inflicted by out-of-state actors[.]” Ford Motor Co., 141 S. Ct. at 1030 (quoting Burger King, 471 U.S. at 473).
IV
The Booking Entities and Expedia Entities also assert that we lack subject-matter jurisdiction over this case because the plaintiffs do not have Article III standing to bring their Title III claims. In essence, they argue that the plaintiffs cannot allege injury-in-fact; even if the Booking Entities and Expedia Entities never trafficked in the properties, the properties would still have been confiscated by the Cuban government and the plaintiffs’ positions would be unchanged. They further argue that
A plaintiff has Article III standing if he suffered an injury in fact that can be fairly traced to the defendant‘s conduct and that can be redressed with a favorable decision. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). Like the plaintiff in Garcia-Bengochea, the plaintiffs in this case must allege sufficient facts to plausibly state these three elements. See Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1621 (2020).
Our review of standing is plenary. See, e.g., Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1112 (11th Cir. 2021). And when addressing standing, we must assume that the plaintiffs would be successful on the merits of their Title III claims. See Warth v. Seldin, 422 U.S. 490, 502 (1975); Culverhouse v. Paulson & Co. Inc., 813 F.3d 991, 994 (11th Cir. 2016).
As we note in Garcia-Bengochea, all the courts that have tackled this question have concluded that similarly-situated plaintiffs have Article III standing to bring a claim under Title III. See, e.g., Glen v. Am. Airlines, Inc., 7 F.4th 331, 334-36 (5th Cir. 2021); Glen v. Trip Advisor LLC, 529 F. Supp. 3d 316, 326-28 (D. Del. 2021), aff‘d, 2022 WL 3538221, at *2 (3d Cir. August 18, 2022); de Fernandez v. Crowley Holdings, Inc., No. 21-CV-20443, 2022 WL 860373, at *3-*4 (S.D. Fla. Mar. 23, 2022); Exxon Mobil Corp. v. Corporación CIMEX S.A., 534 F. Supp. 3d 1, 30-32 (D.D.C. 2021); Sucesores de Don Carlos Nuñez y Doña Pura Galvez, Inc. v. Société Générale, S.A., 577 F. Supp. 3d 295, 307-10 (S.D.N.Y. Dec. 22, 2021); Moreira v. Société Générale, S.A., 573 F. Supp. 3d 921, 925-29 (S.D.N.Y. Nov. 24, 2021); N. Am. Sugar Indus. Inc. v. Xinjiang Goldwind Sci. & Tech. Co., No. 20-CV-22471, 2021 WL 3741647, at *3-*6 (S.D. Fla. Aug. 24, 2021); Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd., 484 F. Supp. 3d 1215, 1226-31 (S.D. Fla. 2020); Havana Docks Corp. v. MSC Cruises SA Co., 484 F. Supp. 3d 1177, 1190-95 (S.D. Fla. 2020); Havana Docks Corp. v. Carnival Corp., No. 19-CV-21724, 2020 WL 5517590, at *6-*11 (S.D. Fla. Sept. 14, 2020). We agree with this unanimous perspective.
The Fifth Circuit‘s decision in Glen, 7 F.4th at 334-36, is an especially apt comparator for the plaintiffs here. Like our plaintiffs, Mr. Glen alleged that his family owned beachfront properties in Varadero that were confiscated by the Castro regime. See id. at 333. Mr. Glen filed suit against American Airlines, alleging that it engaged in trafficking by operating a website through which travelers reserved lodging at hotels built on his family‘s former properties. See id. at 334. On appeal, the Fifth Circuit held that Mr. Glen had Article III standing to bring his Title III claim because he adequately alleged a concrete injury that bore a close relationship to a harm with “common law roots” (unjust enrichment) that was traceable to American Airlines. See id. at 334-36. As to traceability, the Fifth Circuit found a “direct ‘causal link between [Mr. Glen‘s] injury from the Cuban Government‘s expropriation of [his family‘s] property and [the] subsequent trafficker‘s unjust enrichment from . . . use of that confiscated property.‘” Id. at 336 (quoting Havana Docks Corp., 484 F. Supp. 3d at 1227).
Regarding traceability, Mr. Glen and our plaintiffs remain in the same proverbial boat. See id. at 335-36. Like Mr. Glen, the plaintiffs’ alleged injuries are traceable to the Booking Entities and Expedia Entities because they were unjustly enriched through business arrangements they made with the hotels built on the plaintiffs’ confiscated properties. See id. at 336. The Booking Entities and Expedia Entities have not received authorization from the plaintiffs to engage in those arrangements, nor have they compensated the plaintiffs for the benefits they‘ve reaped. As a result, the Booking Entities and Expedia Entities caused a new injury separate from the Cuban government‘s initial wrongful confiscation of the plaintiffs’ properties. And that harm is certainly traceable to the Booking Entities and Expedia Entities themselves. See Havana Docks, 484 F. Supp. 3d at 1230.
The Booking Entities and Expedia Entities fare no better on redressability, the final prong of the standing analysis. See Lujan, 504 U.S. at 561 (holding that a plaintiff must show that it is “likely as opposed to merely speculative, that the injury will be redressed by a favorable decision“) (internal quotations omitted). The plaintiffs have alleged that the Booking Entities and Expedia Entities caused them a financial injury by trafficking in their properties without their permission and without compensation. That, it goes without saying, is an injury which the award of damages under Title III will redress. See, e.g., Trip Advisor, 529 F. Supp. 3d at 328 (“Glen‘s alleged injury can be redressed by a favorable judgment. A favorable judgment would entitle Glen to money damages as specified in the Helms-Burton Act . . ., compensation that would redress the harm [he] allegedly suffered from Defendants’ economic exploitation of the Subject Properties.“).
In sum, we conclude that the plaintiffs have sufficiently alleged each of the requirements of Article III standing.
V
Based on the uncontroverted allegations in the complaint, the district court has specific personal jurisdiction over the Booking Entities and Expedia Entities pursuant to
REVERSED AND REMANDED.