Herederos De Roberto Gomez Cabrera, LLC v. Teck Resources Limited

United States District Court

for the

Southern District of Florida

Herederos de Roberto Gomez )

Cabrera, LLC, Plaintiff, )

)

Civil Action No. 20-21630-Civ-Scola

v. )

)

Teck Resources Limited, Defendant. )

Order Granting Motion to Dismiss

This matter is before the Court upon Defendant Teck Resources Limited’s

(“Teck”) motion to dismiss (ECF No. 14.) For the reasons set forth below, the

motion is granted.

1. Background

The Plaintiff Herederos de Roberto Gomez Cabrera, LLC (“HRGC”) filed this

action against the Defendant Teck pursuant to Title III of the Cuban Liberty

and Democratic Solidarity Act (the “Helms-Burton Act,” or the “Act”). The Act

creates a private right of action against any person who traffics in confiscated

property in Cuba. See 22 U.S.C. § 6082(a)(1)(A). The Helms-Burton Act serves

to “protect United States nationals against confiscatory takings and wrongful

trafficking in property confiscated by the Castro regime.” 22 U.S.C. § 6022(6).

The Plaintiff HRGC company is owned by the heirs of Robert Gomez

Cabrera. (ECF No. 7 ¶ 8.) In July 1956, Gomez Cabrera, through his company

Rogoca Minera, S.A., purchased twenty-one mines spanning over 624.91 acres

of land in the town of El Cobre in Cuba. (Id. ¶ 6.) Gomez Cabrera operated the

mines until the property was confiscated by the Cuban government (the date of

which is unidentified). (Id. ¶ 7.) In September 1969, Cabrera’s children

inherited all rights, title, and interests held by Cabrera in Rogoca Minera, S.A.,

including the twenty-one mines, mining equipment, and installations. (Id. ¶¶

7,8.) Cabrera’s children incorporated Plaintiff HRGC, a Florida limited liability

company and assigned it their claims to the confiscated property (Id. ¶ 11.) The

Plaintiff is the holder of all interests inherited by Cabrera’s children who were

citizens of the United States on March 12, 1996. (Id.)

In February 1994, Defendant Teck, a Canadian corporation with its

principal place of business in Canada, and Joutel Resources Limited (“Joutel”),

a Canadian corporation, engaged in a joint venture to explore and develop land

holdings in Cuba. (Id. ¶ 25.) At the time, Joutel held exclusive mineral

exploration and development rights over 2485 miles of land in Cuba, including

the confiscated mines. (Id. ¶ 26.) In January 1996, Teck and Joutel entered

into a written contract giving Teck a 50% ownership in all of Joutel’s holdings

in Cuba. (Id. ¶ 27.) Teck was charged with operating the mines developed on

Joutel’s concessions from the Cuban government. (Id. ¶ 30.) One month later,

Teck and Joutel entered into a written agreement with Geominers, S.A.

(“Geominers”), a Cuban government-owned company, to explore and extract

minerals from “mining lands in Cuba.” (Id. ¶ 24.). Teck continued managing

the mining operations through 2009. (Id. ¶ 32.) Today, Teck owns seven

subsidiaries in Washington and operates a zinc mine in Alaska (Id. ¶ 25.)

In its one-count amended complaint, the Plaintiff alleges that Teck violated

Title III of the Helms-Burton Act. (Id. ¶ 41.) The Plaintiff claims that Teck

knowingly and intentionally trafficked on confiscated property. (Id. ¶¶ 31, 34.)

Teck moves to dismiss the amended complaint in its entirety on several

grounds. Teck argues that the Court lacks personal jurisdiction over Teck and

even if the Court did have jurisdiction, the complaint has failed to state a

claim. (ECF No. 14 at 1.) In support of its motion to dismiss, Teck attached the

affidavit of Amanda Robinson, corporate secretary of Teck, in which she

represents that Teck is not licensed to conduct business in Florida and that its

subsidiaries are totally independent from Teck in that they have wholly

different boards of directors and officers, as well as separate accounting. (ECF

No. 14-2.) Teck also moved to stay discovery until the Court ruled on the

motion to dismiss. (ECF No. 28.) The Plaintiff opposed such relief. (ECF No. 34.)

2. Legal Standard

A court considering a motion to dismiss, filed under Federal Rule of Civil

Procedure 12(b)(6), must accept all the complaint’s allegations as true,

construing them in the light most favorable to the plaintiff. Pielage v.

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need

only contain a short and plain statement of the claim showing that the pleader

is entitled to relief, a plaintiff must nevertheless articulate “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). “But where the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has

alleged—but it has not shown—that the pleader is entitled to relief.” Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)) (internal

punctuation omitted). A court must dismiss a plaintiff’s claims if she fails to

nudge her “claims across the line from conceivable to plausible.” Twombly, 550

U.S. at 570.

3. Analysis

In its motion to dismiss, Teck argues that the amended complaint should be

dismissed because the Court lacks personal jurisdiction over it, the complaint

fails to allege that HRGC has an actionable ownership interest or that Teck

intentionally trafficked on the confiscated property. In response, the Plaintiff

argues that the Court has jurisdiction over Teck under the federal long-arm

statute and that the amended complaint has sufficiently stated a claim for

relief under Title III of the Act.

A. Jurisdiction Over Foreign Defendant

1. Principles of Jurisdiction

Where a plaintiff meets its initial burden to make out a prima facie case

for a court’s exercise of personal jurisdiction over a defendant by providing

sufficient evidence in the complaint to withstand a motion for to dismiss,

courts may then consider affidavits, documents, or other testimony provided by

the defendant challenging the allegations supporting personal jurisdiction.

Stubbs v. Wyndham Nassau Resort and Crystal Palace Casino, 447 F.3d 1357,

1360 (11th Cir. 2006); see also Internet Solutions Corp. v. Marshall, 557 F.3d

1293, 1295 (11th Cir. 2009). Should a defendant provide such material, the

burden then shifts back to the plaintiff to produce evidence

supporting personal jurisdiction. Stubbs, 447 F.3d at 1360. All reasonable

inferences must be construed in favor of the plaintiff. Id. Before courts may

consider materials provided by a defendant and plaintiff the court must first

decide if the plaintiff has made out a prima facie case supporting the court's

exercise of personal jurisdiction.

To determine whether a party has adequately alleged personal

jurisdiction over a foreign defendant, the Court first asks whether there is

jurisdiction under Florida’s long-arm statute and next determines whether the

exercise of jurisdiction comports with the Due Process Clause of the

Fourteenth Amendment. Waite v. All Acquisition Corp., 901 F.3d 1307, 1312

(11th Cir. 2018). Florida’s long-arm statute provides two means for subjecting

a foreign defendant to the jurisdiction of Florida courts: 1) “a defendant is

subject to general personal jurisdiction—that is, jurisdiction over any claims

against a defendant, whether or not they involve the defendant’s activities in

Florida—if the defendant engages in substantial and not isolated activity in

Florida.” Id. (internal quotations omitted) (emphasis in original) (discussing Fla.

Stat. § 48.193); and 2) “a defendant is subject to specific personal jurisdiction—

that is, jurisdiction over suits that arise out of or related to a defendant’s

contacts with Florida—for conduct specifically enumerated in the statute.”

Under either form of personal jurisdiction, the defendant must have “‘certain

minimum contacts with [the state] such that the maintenance of the suit does

not offend traditional notions of fair play and substantial

justice.’” Id. (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The

inquiry focuses on the defendant's contacts with the state, and not the

“random, fortuitous, or attenuated” contacts it has by interacting with other

persons affiliated with the state. Walden v. Fiore, 571 U.S. 277, 284 (2014).

2. General Jurisdiction

Regarding general jurisdiction under Florida’s long-arm statute, “[a]

defendant who is engaged in substantial and not isolated activity within this

state, whether such activity is wholly interstate, intrastate, or otherwise, is

subject to the jurisdiction of the courts of this state, whether or not the claim

arises from that activity.” Fla. Stat. § 48.193(2) (2020). Under the U.S.

Constitution, a “court may assert general jurisdiction over foreign (sister-state

or foreign-country) corporations to hear any and all claims against them when

their affiliations with the State are so ‘continuous and systematic’ as to render

them essentially at home in the forum State.” Daimler AG v. Bauman, 571 U.S.

117, 127 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. 915, 919 (2011)). A corporation’s place of incorporation and its principal

place of business are generally the only “limited set of affiliations with a forum

[that] will render a defendant amenable to all-purpose jurisdiction there.” Id. at

137 (citation omitted). Here, it is undisputed that Teck is not a Florida resident

as it is incorporated in Canada and has its principle place of business there.

Accordingly, the Court finds that Teck is not subject to the Court’s

general personal jurisdiction. Scanz Techs., Inc. v. JewMon Enterprises, LLC,

No. 20-22957-CIV, 2021 WL 65466, at *3 (S.D. Fla. Jan. 7, 2021) (Scola, J.)

3. Specific Jurisdiction

Because the Court does not have general personal jurisdiction over

Defendant Teck, the Court must determine if Plaintiff HRGC has prima facie

plead that the Court has specific personal jurisdiction over Teck.

“[A] Florida court can exercise specific personal jurisdiction—that is,

jurisdiction over suits that arise out of or relate to a defendant’s contacts with

Florida—if the claim asserted against the defendant arises from the defendant’s

contacts with Florida, and those contacts fall within one of the enumerated

categories set forth in section 48.193(1)(a).” Thompson v. Carnival Corp., 174 F.

Supp. 3d 1327, 1337 (S.D. Fla. 2016) (Moore, J.) (citing Schulman, 624 F.

App’x at 1004–05). The Plaintiff fails to explain how its claim for unlawful

trafficking in Cuba is related to Teck’s activities in Florida, which at this point

appear to be nonexistent. Indeed, the amended complaint alleges that Teck is a

Canadian corporation with its principle place of business in Canada, with

subsidiaries in Washington and Alaska, and is otherwise silent as to whether

Teck has any contacts with Florida. For these reasons, HRGC has failed to

plead specific personal jurisdiction over Teck.

4. Rule 4(k)(2)

HRGC dedicates most of its response to argue that the Court has

jurisdiction over Teck under Federal Rule of Civil Procedure 4(k)(2) or the

federal long-arm statute. This is argument is likewise unavailing.

“Rule 4(k)(2)—the so-called federal long-arm statute—permits a federal

court to aggregate a foreign defendant’s nationwide contacts to allow for

personal jurisdiction provided that two essential conditions are met: ‘(1)

plaintiff’s claims must arise under federal law; and (2) the exercise of

jurisdiction must be consistent with the Constitution and laws of the United

States.’” Thompson, 174 F. Supp. 3d at 1337. The rule is neither applicable nor

relevant until a court finds that a defendant is not subject to personal

jurisdiction in the courts of any state. Storm v. Carnival Corp., No. 20-22227-

CIV, 2020 WL 7415835, at *11 (S.D. Fla. Dec. 18, 2020) (Torres, MJ). Once it

becomes clear that there is no specific or general jurisdiction under Florida’s

long-arm statute, the analysis on whether there is personal jurisdiction under

Rule 4(k)(2) turns on whether there are enough minimum contacts with the

United States as a whole. Id.

As discussed above, there is no specific or general jurisdiction under the

state long-arm statute over Teck, nor has Teck identified any other forum

where it is amenable to jurisdiction. Accordingly, the Court could use Rule

4(k)(2) to establish jurisdiction over Teck if: (1) the exercise of jurisdiction must

be consistent with the Constitution and the laws of the United States; and (2)

the claim must arise under federal law. In re Takata, 396 F. Supp. 3d at 1150-

51. Because there is no dispute that the Plaintiff’s claims arise under federal

law, the Helms-Burton Act, the Court must determine whether the exercise of

federal jurisdiction over Teck would comport with the Constitution and the

laws of the United States, in other words, comports with due process. The

answer is a resounding no.

“Rule 4(k)(2) was implemented to fill a lacuna in the enforcement of

federal law in international cases.” Id. at 1337 (internal quotations omitted).

However, courts rarely invoke jurisdiction under the rule. Id. Indeed, “[i]n the

wake of the Supreme Court’s decision in Daimler, it appears unlikely that

general jurisdiction over a foreign defendant could ever be available under

4(k)(2).” Id. at 1338 n.9 (citing Daimler, 571 U.S. at 138 (rejecting as

“unacceptably grasping” the plaintiffs’ position that the Court should “approve

the exercise of general jurisdiction in every State in which a corporation

“engages in a substantial, continuous, and systematic course of business.”)).

This is not one of those uncommon cases. Teck’s contacts with the

United States through its subsidiaries are too attenuated to support

jurisdiction under Rule 4(k)(2). The Plaintiff advances several ambiguous

allegations that do not demonstrate specific conduct by Teck in the United

States. The amended complaint vaguely alleges Teck “directly or indirectly,

owns, operates, controls, manages, and/or supervises at least seven U.S.-

based subsidiaries in the State of Washington,” and “Teck directly or indirectly,

owns, operates, controls, manages, and/or supervises one of the world’s largest

zinc mines” in Alaska and Washington. (ECF No. 7 ¶¶ 14, 15.) These

allegations are not sufficient to establish jurisdiction under Rule 4(k)(2)

because there is no alleged connection between Teck and the alleged

subsidiaries. See Schulman v. Inst. for Shipboard Educ., 624 F. App’x 1002,

1006 (11th Cir. 2015) (holding that a French manufacturer of catamarans that

had distribution agreements with dealers in Florida, marketed its vessels in

Florida, attended a trade show in Florida, and had an agreement with a

Maryland-based financing company to help buyers and dealers in the United

States satisfied neither Florida’s long-arm statute for general

jurisdiction nor Rule 4(k)(2)); see also In re Takata, 396 F. Supp. 3d at 1151-

52. (finding that the plaintiffs had not established jurisdiction under the federal

long-arm statute because the plaintiff had ambiguously alleged that the foreign

defendant was in the business of designing, developing, manufacturing,

marketing, and selling the class vehicles); GolTV, Inc. v. Fox Sports Latin Am.

Ltd., 277 F. Supp. 3d 1301, 1318 (S.D. Fla. 2017) (Altonaga, J.)(finding that the

Court did not have jurisdiction over the defendant under Rule 4(k)(2) because

the alleged activity in the United States involved other entities not named in

the amended complaint).

Moreover, even if the subsidiaries’ mining activities could be attributed to

Teck, they cannot be said to be related to the unlawful trafficking in the

confiscated property in Cuba. GolTV, Inc., 277 F. Supp. 3d at 1318 (finding that

the Court did not have jurisdiction over defendant under the federal long-arm

statute because the defendant’s contacts with the United States did not give

rise to the claims raised in the amended complaint).

B. Jurisdictional Discovery

In its response in opposition, the Plaintiff argues that “[a]t a minimum, it

is appropriate for this Court to exercise its discretion to order jurisdictional

discovery [on]…Defendant’s continuous and systemic contacts within the

United States, which information is in Defendant’s exclusive control and is

disputed by Defendant.” (ECF No. 23 at 11.) The request is denied on several

grounds.

To begin with, the Eleventh Circuit has explained that in certain cases

district courts should not “reserve ruling on [a pending] motion to dismiss in

order to allow the plaintiff to look for what the plaintiff should have had—but

did not before coming through the courthouse doors, even though the court

would have the inherent power to do so.” Dorchester Dev., Inc., 692 F.2d 727,

729 (11th Cir. 1982). Here, the Plaintiff was well-aware of the fact-intensive

analysis that federal courts apply when deciding issues of personal jurisdiction

over nonresident defendants. In this case, the Plaintiff has known that Teck

would argue that this Court lacks personal jurisdiction over the matter since

the filing of the subject motion to dismiss in September 2020. Indeed, in the

joint scheduling report filed the next month, the parties indicated that they had

considered the need for jurisdictional discovery. (ECF No. 17.) Nonetheless,

HRGC has not moved for such relief.

Additionally, the Plaintiff’s request is procedurally improper. United

Techs. Corp. v. Mazer, 556 F.3d 1260, 1280 (11th Cir. 2009) (denying

jurisdictional discovery where the plaintiff recognized the potential utility of

jurisdictional discovery by the time it filed its response to motion to dismiss but

never formally moved the district court for jurisdictional discovery and instead,

buried the request for such relief in its briefs); see also Thompson, 174 F.

Supp. 3d at 1339 (denying request for leave to take jurisdictional discovery

because the plaintiff did not move for such relief, rather, couched the request

as an alternative argument in their response in opposition to a motion to

dismiss). Moreover, even if the Plaintiff had properly moved for jurisdictional

discovery, there exists no genuine dispute on a material jurisdictional fact to

warrant jurisdictional discovery. Thompson, 174 F. Supp. 3d at 1339. Indeed,

the Plaintiff has not set forth any evidence to establish jurisdiction or rebut

Teck’s evidence that its subsidiaries in the United States are totally

independent from it or that their activities relate to any mining in the

confiscated properties. Peruyero v. Airbus S.A.S., 83 F. Supp. 3d 1283, 1290

(S.D. Fla. 2014) (Cooke, J.) (denying request to take jurisdictional discovery

because the request was buried in the response in opposition to motion to

dismiss and because the plaintiff had not any evidence to rebut the defendant’s

evidence against jurisdiction).

C. The Plaintiff Fails to State a Claim

Even if the Court had jurisdiction to hear this dispute, the amended

complaint is due to be dismissed on its merits. Teck argues that the amended

complaint should be dismissed because HRGC failed to allege it has an

actionable ownership interest that was acquired prior to March 12, 1996 and

that it did not sufficiently allege that Teck knowingly and intentionally

trafficked in confiscated property.

The Court agrees that HRGC did not sufficiently allege that it had an

actionable ownership interest because it did not allege that it obtained the

interest prior to March 12, 1996. The relevant provision of the Helms-Burton

Act provides:

In the case of property confiscated before March 12, 1996, a

United States national may not bring an action under this section

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).

HRGC does not dispute that the subject properties were confiscated

before March 12, 1996 (although the Court notes the complaint fails to identify

the date of confiscation) and that it obtained ownership of its claim to the

subject properties after March 12, 1996. Indeed, in its response in opposition,

HRGC indicates that “in 2019, the heirs [of Robert Gomez Cabrera] pooled their

respective causes of action together by forming Herederos De Roberto Gomez

Cabrera, LLC [“HRGC”]; which is presently seeking relief in this action…” (ECF

No. 23 at 18.) HRGC contends that the statute does not bar this action because

it obtained the ownership of the claim to the confiscated property by way of

assignment in 2019. This argument is unavailing.

The Act expressly requires that actionable claims must be acquired

before March 12, 1996. Thus, while the individual heirs may have acquired an

ownership interest before that date, the statute is clear: no United States

national may bring an action unless he acquired ownership of the claim before

March 12, 1996. See Gonzalez v. Amazon.com, Inc., No. 19-23988-CIV, 2020

WL 1169125, at *2 (S.D. Fla. Mar. 11, 2020) (Scola, J.), affirmed by Gonzalez v.

Amazon.com, Inc., 835 F. App’x 1011, 1012 (11th Cir. 2021); see also Garcia-

Bengochea v. Royal Caribbean Cruises, Ltd., No. 1:19-CV-23592-JLK, 2020 WL

6081658, at *2 (S.D. Fla. Oct. 15, 2020) (King, J.) The statute makes no

distinctions with respect to the method of acquiring the claim. Glen v. Trip

Advisor LLC, No. CV 19-1809-LPS, 2021 WL 1200577, at *7 (D. Del. Mar. 30,

2021) (Stark, J.).

The Court also agrees that HRGC has not sufficiently alleged that Teck

knowingly and intentionally trafficked in the confiscated property. Under the

Act, “a person ‘traffics’ in confiscated property if that person knowingly and

intentionally ... engages in a commercial activity using or otherwise benefiting

from confiscated property.” 22 U.S.C. § 6023(13). “[T]he only companies that

will run afoul of this new law are those that are knowingly and intentionally

trafficking in the stolen property of U.S. citizens.” 142 Cong. Rec. H1724-04, at

H1737 (Mar. 6, 1996). The amended complaint primarily offers conclusory

allegations that Teck knowingly and intentionally trafficked in the confiscated

property. (ECF No. 7 94§ 32, 33, 34). Gonzalez, 2020 WL 1169125, at *2. The

amended complaint also claims that Teck had “actual or constructive

knowledge” that it was trafficking in confiscated property by virtue of the

Cuban constitution, laws, and public records, and notice given to Joutel by the

heirs. (id. § 31.) The first half of this paragraph is conclusory as it relies on

unidentified laws and records and likewise is insufficient to state a claim. While

the second half is a closer call, it is insufficient to state a claim as it relies on

notice given to another entity that went into business with Teck sometime after

the property was confiscated. Because the Court finds that the amended

complaint is due to be dismissed for lack of jurisdiction and as a matter of law,

the Court need not address remaining grounds for dismissal.

5. Conclusion

For the reasons set forth above, the Court grants Teck’s motion to

dismiss (ECF No. 14) and dismisses HRGC claims without prejudice. HRGC

alternatively seeks permission to file a second amended complaint. (ECF No. 23

at 23.) This request is improper and is therefore denied. See Newton v. Duke

Energy Florida, LLC, 895 F.3d 1270, 12777 (11th Cir. 2018) (“[W]here a request

for leave to file an amended complaint simply is imbedded within an opposition

memorandum, the issue has not been raised properly.”); Avena v. Imperial

Salon & Spa, Inc., 740 Fed. App’x 679, 683 (11th Cir. 2018) (“[W]e’ve rejected

the idea that a party can await a ruling on a motion to dismiss before filing a

motion for leave to amend.”) (noting also that “a motion for leave to amend

should either set forth the substance of the proposed amendment or attach a

copy of the proposed amendment”) (quotations omitted). The Court thus

dismisses the amended complaint without leave to amend.

The Clerk is directed to close this case. Any pending motions are denied

as moot. (ECF Nos. 26, 36, 38.)

Done and ordered at Miami, Florida on April 27, 2021.

(Robert N. [4 Jr.

United States District Judge