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 Denying Motion for Reconsideration

This matter is before the Court upon Plaintiff Herederos de Roberto

Gomez Cabrera, LLC’s (“HRGC”) motion for reconsideration of this Court’s

order dismissing the case without leave to amend. (ECF No. 40.) In its motion,

the Plaintiff seeks reconsideration of the Court’s dismissal without leave to

amend and denial of jurisdictional discovery, and alternatively, leave to amend.

Defendant Teck Resources Limited (“Teck”) opposes the motion, arguing that

the Plaintiff rehashes the arguments already denied by the Court and that even

if reconsideration were appropriate, leave to amend would be futile. (ECF No.

41.) HRGC timely replied. (ECF No. 44.) For the reasons set forth below, the

motion is denied.

1. Background

The Plaintiff Herederos de Roberto Gomez Cabrera, LLC 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”). HRGC is a

Florida company 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.) The mines were confiscated by the Cuban

government at some point in time. 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 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.) The amended complaint claims that

Teck, a Canadian corporation, trafficked on the confiscated property.

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

Title III of the Helms-Burton Act. (Id. ¶ 41.) Teck moved to dismiss the

amended complaint in its entirety because the Court lacked personal

jurisdiction over Teck. Additionally, Teck claimed, that even if the Court had

jurisdiction over the case, the amended complaint failed to state a claim for

relief.

After careful consideration, the Court granted Teck’s motion to dismiss

on several grounds. The Court found that HRGC had failed to allege sufficient

facts to establish personal jurisdiction over Teck. The Court also denied the

Plaintiff’s argument that jurisdiction could be established under the federal

long-arm statute because Teck’s contacts with the United States through its

mining subsidiaries are too attenuated to support jurisdiction under Rule

4(k)(2). The Court further explained that 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 and thus did not

establish jurisdiction. The Court also denied HRGC’s claim for jurisdictional

discovery because it did not file a motion requesting same despite indicating its

intent to seek jurisdictional discovery as early as September 2020.

The Court went a step further and granted the motion to dismiss on its

merits. The Court found that even if jurisdiction had been established, the

amended complaint was due to be dismissed for failure to state a claim. The

amended complaint did not sufficiently allege that HRGC had an actionable

ownership interest because it did not allege that it obtained the interest prior to

March 12, 1996. Lastly, the Court determined that HRGC had not sufficiently

alleged that Teck knowingly and intentionally trafficked in the confiscated

property. Instead, the amended complaint offered conclusory allegations based

on unidentified laws and records, and at best attempted to establish notice

through that a separate entity knew. The Court denied the Plaintiff’s request

for leave to amend because it was embedded in its response in opposition to

the motion and was therefore, improper. The Court granted the motion to

dismiss, dismissed the claims without prejudice, and closed the case.

HRGC filed a motion to reconsider the Court’s order granting the motion

to dismiss. (ECF No. 40.) HRGC requests that the Court reconsider its findings

regarding jurisdictional discovery. (Id. at 2.) HRGC argues that it had timely

served jurisdictional discovery on Teck, had requested the ability to take

jurisdictional discovery in other Court filings, and that jurisdictional discovery

should be permitted in the interests of due process and judicial economy. (Id.)

HRGC also seeks reconsideration of the Court’s decision to dismiss the

complaint without leave to amend and requests leave to file a second amended

complaint. (ECF No. 40 at 1.) HRGC attached the proposed second amended

complaint to its motion. (ECF No. 40-1.)

Teck opposes the motion arguing that HRGC’s motion simply rehashes

the arguments previously raised and rejected and improperly seeks to amend

the complaint for a second time based on facts that could have been alleged in

the first amended complaint. (ECF No. 41 at 1.) Teck further argues that even if

the motion to reconsider were procedurally proper, it still fails to set forth good

cause for amendment after the Court-ordered date to amend had passed and

that amendment would be futile. (Id. at 2.)

2. Legal Standard

“[I]n the interests of finality and conservation of scarce judicial resources,

reconsideration of an order is an extraordinary remedy that is employed

sparingly.” Gipson v. Mattox, 511 F. Supp. 2d 1182, 1185 (S.D. Ala. 2007). A

motion to reconsider is “appropriate where, for example, the Court has patently

misunderstood a party, or has made a decision outside the adversarial issues

presented to the Court by the parties, or has made an error not of reasoning

but of apprehension.” Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561,

1563 (S.D. Fla. 1992) (Hoeveler, J.) (citation omitted). “Simply put, a party may

move for reconsideration only when one of the following has occurred: an

intervening change in controlling law, the availability of new evidence, or the

need to correct clear error or prevent manifest injustice.” Longcrier v. HL-A Co.,

595 F. Supp. 2d 1218, 1247 (S.D. Ala. 2008) (quoting Vidinliev v. Carey Int’l,

Inc., No. CIV.A. 107CV762-TWT, 2008 WL 5459335, at *1 (N.D. Ga. Dec. 15,

2008)). However, “[s]uch problems rarely arise and the motion to reconsider

should be equally rare.” Z.K. Marine Inc., 808 F. Supp. at 1563 (citation

omitted). Certainly, if any of these situations arise, a court has broad discretion

to reconsider a previously issued order. Absent any of these conditions,

however, a motion to reconsider is not ordinarily warranted.

3. Analysis

HRGC requests that the Court reconsider its findings regarding

jurisdictional discovery and reasoning for denying leave to amend the amended

complaint. The Court turns to each argument in turn.

A. Jurisdiction Under Rule 4(k)(2) and Jurisdictional Discovery

HRGC seeks reconsideration of the Court’s ruling on jurisdiction under

Rule 4(k)(2) and its denial of jurisdictional discovery. It relies on the clear-error

and new evidence prongs of the reconsideration analysis. HRGC avers that the

Court misapprehended its argument as to jurisdiction under Rule 4(k)(2),

because the Florida long-arm statute is irrelevant, the Court did not consider

the “effects doctrine,” and there is new evidence regarding Teck’s subsidiaries

in the United States. These arguments are unavailing.

The Court conducted a complete jurisdictional analysis including

whether jurisdiction could be established under both the Florida and federal

long arm-statute. Moreover, contrary to HRGC’s assertion that “the Court

recognized that…Rule 4(k)(2) is appropriate to establish jurisdiction over

Defendant,” the Court found that the amended complaint satisfied only one of

the two required elements to establish jurisdiction under Rule 4(k)(2).

Thompson v. Carnival Corp., 174 F. Supp. 3d 1327, 1337 (S.D. Fla. 2016)

(Moore, J.) (“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.’”). Critically, the Court found that although HRGC’s claims arose under

federal law, the amended complaint failed to tie Teck to the actions of its

subsidiaries in the United States. This analysis is consistent with the effects

test. In re Takata Airbag Prod. Liab. Litig., 396 F. Supp. 3d 1101, 1150 (S.D.

Fla. 2019) (Moreno, J.) (finding the plaintiffs did not establish jurisdiction over

foreign defendants because the “Plaintiffs set forth no allegations establishing

the nature of the corporate relationship between the subsidiary Domestic

Defendants and their parents.”)

The Court also denies HRGC’s argument that the Court erred in denying

its request for jurisdictional discovery. HRGC concedes that it did not formally

file a motion for leave to take jurisdictional discovery. (ECF No. 40 at 6.)

Notwithstanding, HRGC argues that it should be permitted to do so despite not

formally requesting such relief because it notified the Court that it intended to

seek jurisdictional discovery and it served jurisdictional discovery on Teck

during the time the motion to dismiss was pending.

HRGC is “foreclosed from pursuing jurisdictional discovery in an attempt

to marshal facts that [it] should have had — but did not — before coming

through the courthouse doors.” Auf v. Howard Univ., No. 19-22065-CIV, 2020

WL 1452350, at *10 (S.D. Fla. Mar. 25, 2020) (Smith, J.) (citing Thompson v.

Carnival Corp., 174 F. Supp. 3d 1327, 1333 (S.D. Fla. 2016)). Put differently,

“the purpose of jurisdictional discovery is to ascertain the truth of the

allegations or facts underlying the assertion of personal jurisdiction. It is not a

vehicle for a ‘fishing expedition’ in hopes that discovery will sustain the

exercise of personal jurisdiction.” Id. As explained in the Court’s order granting

the motion to dismiss, the amended complaint did not allege any facts

supporting personal jurisdiction over Teck based on its domestic subsidiaries.

Additionally, upon review of HRGC’s request for production, attached to

the subject motion, the Court finds that HRGC has not made a showing that it

served jurisdictional discovery while the motion to dismiss was pending. The

requests for production do not seek jurisdictional information. On the contrary,

the discovery requests seek information regarding Teck’s corporate relationship

with a non-subsidiary company Joutel Resources Limited. (ECF No. 40-2.) The

requests also seek documents relating Teck’s relationship with Cuban

businesses and different government entities. Critically, none of the requests

seek information specific to Teck’s relationships with its subsidiaries in the

United States. Thus, the discovery that was pending while the motion to

dismiss was pending would not have changed the Court’s determination on

jurisdiction. Compare RMS Titanic, Inc. v. Kingsmen Creatives, Ltd., 579 F.

App’x 779, 791 (11th Cir. 2014) (“Because the facts [plaintiff] sought would not

have affected the district court’s jurisdiction, it was not an abuse of discretion

for the district court to deny the motion for jurisdictional discovery.”); with

Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 729-31 (11th Cir. 1982)

(remanding because dismissal was “premature” where plaintiff’s requests for

production of documents bearing on jurisdiction remained outstanding) and

Rd. Space Media, LLC v. Miami-Dade Cty., No. 19-21971-CIV, 2020 WL

2988424, at *1 (S.D. Fla. Apr. 24, 2020) (Scola, J.).

Moreover, as explained in this Court’s order on the motion to dismiss,

HRGC’s request for jurisdictional discovery is untimely. HRGC argues that it

previously raised the issue of jurisdictional discovery: (1) the parties’ joint

scheduling report (ECF No. 17), (2) its response in opposition to the motion to

dismiss (ECF No. 23), (3) the parties status report; and (4) opposition to Teck’s

motion to stay discovery. To be clear, the subject motion is HRGC’s first motion

for jurisdictional discovery, filed after the Court dismissed the complaint and

closed this case. HRGC has been on notice that the parties disagreed on

whether jurisdictional discovery was appropriate since October 13, 2020 or six

months before the Court ruled on the motion to dismiss. (ECF No. 17 at 2.) At

that point, the onus was on HRGC to properly seek jurisdictional discovery.

Howard Univ., 2020 WL 1452350, at *10 (citing United Techs. Corp. v. Mazer,

556 F.3d 1260, 1280 (11th Cir. 2009)). In Mazer, the plaintiff argued that

rather than dismissing the case for lack of personal jurisdiction over defendant,

the district court should have deferred a ruling on the motion to dismiss and

granted plaintiff's “requests” for jurisdictional discovery. Id. Rejecting that

argument, the Eleventh Circuit noted that, despite recognizing the potential

utility of jurisdictional discovery months in advance, the plaintiff “never

formally moved the district court for jurisdictional discovery but, instead,

buried such requests in its briefs as a proposed alternative to dismissing …

[the claims].” Id. The court also noted that plaintiff delayed by several months

before serving deposition notices and “failed to take any formal action to

compel discovery or properly issue an ... effective subpoena....” Id. As a result,

the Eleventh Circuit concluded that the district court did not err in dismissing

the case because “[a]ll in all, [the plaintiff] should have taken every step

possible to signal to the district court its immediate need for

such discovery ... [and yet] failed to take any of these reasonable steps to

seek discovery.” Id. (citation omitted). Here, HRGC did not serve discovery

requests that would aid in determining whether jurisdiction exists nor did

HRGC move for leave to take jurisdictional discovery, or to compel outstanding

discovery.

Lastly, HRGC’s argues that “new evidence” warrants reconsideration of

the Court’s denial for jurisdictional discovery. HRGC recently discovered

materials from a “Global Basic Materials,” in which Teck acknowledges its

Alaskan mine as one of its operations. (ECF No. 44-1.) HRGC also obtained

financial disclosures that consolidated the revenues for Teck subsidiaries and

identified several legal contingencies. (ECF No. 44-2). HRGC also submitted

financial statement identifying several subsidiaries within the United States

and in Chile (ECF No. 44-3.) The financial statement includes boilerplate

language that “All subsidiaries are entities that [we] control, either directly or

indirectly,” by owning 50% or more of the voting rights, or potential voting

rights.”

HRGC’s argument is unavailing for several reasons. The Court is not

convinced that Teck’s financial disclosures, indisputably public documents,

were unavailable to HRGC prior to the filing of this action. Additionally, even

accepting the evidence is new, the information is vague as to the amount of

control Teck has over its subsidiaries. Indeed, none of the new evidence is

incorporated into the allegations of the proposed second amended complaint

for purposes of establishing jurisdiction. Additionally, the new evidence does

not overcome Amanda Robinson’s, corporate secretary of Teck, affidavit.

Robinson states that Teck a Canadian corporation and that its subsidiaries are

totally independent from Teck in that they have different boards of directors

and officers, as well as separate accounting. (ECF No. 14-2.) 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).

B. Motion for Leave to Amend First Amended Complaint

HRGC also seeks leave to amend its complaint to include jurisdictional

allegations, add the individual heirs as the Plaintiffs, and allege facts regarding

Teck’s knowing and intentional trafficking. (ECF No. 40 at 11.) HRGC argues

that a denial of its request would result in manifest injustice against the

Plaintiff because if it has to file a new action it will be running against a statute

of limitations and be subject to additional fees. (Id. at 10.)

HRGC requested leave to amend the amended complaint in its response

in opposition to the motion to dismiss, which is improper. See Newton v. Duke

Energy Florida, LLC, 895 F.3d 1270, 1277 (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.”). Teck’s motion to

dismiss put HRGC on notice of the deficiencies of its complaint. While the

motion was pending, HRGC had a choice: stand on its pleading and oppose the

motion to dismiss or review the merits of the motion and request leave to

amend the operative complaint. Sanlu Zhang v. Royal Caribbean Cruises, Ltd.,

No. 19-20773-CIV, 2020 WL 1472302, at *2 (S.D. Fla. Mar. 26, 2020) (Scola,

J.). HRGC made the strategic decision to oppose the motion to dismiss and

lost. The Court will not afford it a second bite of the apple, particularly, where

it declined to “follow the well-trodden procedural path toward amendment.”

Eiber Radiology, Inc. v. Toshiba Am. Med. Sys., Inc., 673 Fed. App’x 925, 930

(11th Cir. 2016) (also noting the propriety of dismissal with prejudice “where a

counseled plaintiff has failed to cure a deficient pleading after having been

offered ample opportunity to do so”). While it is certainly true that our legal

system favors the resolution of cases on their merits, that rule is not without

limits. Especially where, as here, HRGC’s own strategic decisions dictated the

course of litigation.

Further, HRGC’s argument that amendment should be allowed under

Rule 15(a)(2) is misplaced. HRGC relies on Federal Rule 15(a)(2) which provides

“[t]he court should freely give leave” to amend “when justice so requires.” When

leave to amend, however, is sought after the deadline to amend the pleadings

has passed, as here, the movant must do more than argue leave is due under

Federal Rule of Civil Procedure 15(a). That is, the movant must also show “good

cause” under Federal Rule of Civil 16(b) in order to obtain the right to

amend. See Sosa v. Air Print Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998);

Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and

with the judge’s consent.”). The standard set forth in Rule 16(b) “precludes

modification [of the scheduling order] unless the schedule cannot ‘be met

despite the diligence of the party seeking the extension.’” See Sosa, 133 F.3d at

1418. Thus, “diligence is the key to satisfying the good cause requirement.” De

Varona v. Discount Auto Parts, LLC, 285 F.R.D. 671, 672–73 (S.D. Fla. 2012)

(Ungaro, J.). Only if “good cause” for an untimely amendment is shown under

Rule 16(b), does Rule 15(a)’s instruction, that leave should be freely given when

justice so requires, come into play. See Fed. R. Civ. P. 15(a)(2). While the

standard under Rule 15(a) is lenient, still, “a motion to amend may be denied

on numerous grounds such as undue delay, undue prejudice to the [opposing

party], and futility of the amendment.” See Maynard v. Bd. of Regents, 342 F.3d

1281, 1287 (11th Cir. 2003) (citations omitted).

HRGC’s motion to reconsider does not even cite to Rule 16(b) and fails to

set forth the necessary showing of good cause. Upon review of the proposed

second amended complaint, the Court finds that HRGC attempts to

supplement its complaint with facts that have been known to it since the

inception of this action (and likely before that). The proposed complaint seeks

to add the individual heirs as plaintiffs because they allegedly obtained their

interests in the mining properties before March 12, 1996, which was known

prior to the filing of this complaint. However, even if the Court allowed

substitution of the plaintiffs, amendment is not warranted under the

circumstances. For example, the proposed complaint seeks to add additional

facts regarding Teck’s notice that it was trafficking by relying on public records

that have been available since as early as 1960. Teck also intends to add

jurisdictional facts such as two Teck officers serving as officers in some of the

national subsidiaries. However, the subject motion fails to explain why this

information was not previously alleged despite being available.

HRGC also argues that it should be permitted to amend the complaint

because “litigation relating to Article III of the Helms Burton-Act is very new.”

(ECF No. 44 at 8.) This argument is unpersuasive because the parties both

cited to recent cases reviewing similar claims under the Helms-Burton cases,

such that the underlying legal theories are not so new that HRGC cannot be

expected to make a determination whether it should amend its complaint after

the filing of a motion to dismiss.

Even if the Court applied Rule 15(a)(2), the Court finds that amendment

would be futile. “[D]enial of leave to amend is justified by futility when the

‘complaint as amended is still subject to dismissal.’” Burger King Corp. v.

Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999); see Dysart v. BankTrust, 516 F.

App’x 861, 865 (11th Cir. 2013) (same); St. Charles Foods, Inc. v. America’s

Favorite Chicken Co., 198 F.3d 815, 822-23 (11th Cir. 1999) (“When a district

court denies the plaintiff leave to amend a complaint due to futility, the court is

making the legal conclusion that the complaint, as amended, would necessarily

fail.”); Christman v. Walsh, 416 F. App’x 841, 844 (11th Cir. 2011) (“A district

court may deny leave to amend a complaint if it concludes that the proposed

amendment would be futile, meaning that the amended complaint would not

survive a motion to dismiss.”). The proposed amended complaint fails to set

forth a basis for jurisdiction over Teck. Accepting its allegations as true, Teck

has mining subsidiaries in the United States, which it is “directly or indirectly

owns, operates, controls, manages, and/or supervises...” (ECF No. 40-1 at 4

14.) Teck’s activities in the United States include sharing two corporate officers

with three domestic subsidiaries (out of the eight subsidiaries alleged),

“offer[ing]” employment in the United States, owning seemingly unrelated

trademarks, and being publicly traded in the United States. (Id. at 44 16-20.)

However, sharing two corporate officers with some subsidiaries and offering

employment in the United States (as opposed to actually employing), without

more, does not establish jurisdiction under the effects test or Rule 4(k)(2)

(HRGC’s primary basis for jurisdiction). Moreover, the proposed amended

complaint alleges that “Teck’s U.S.-based operations alone have yielded

hundreds of millions of dollars in revenue and gross profit,” but does not allege

if the subsidiaries share bank accounts with Teck such that the subsidiary

would not be independent from the parent. Consol., 216 F.3d at 1294 (noting a

parent corporation “is not subject to the jurisdiction of a forum state merely

because a subsidiary is doing business there,” and holding that a subsidiary

was not a mere agent because it had its own officers and board of directors,

determined its own pricing schemes, and maintained its own bank accounts

and employees.).

4. Conclusion

For these reasons, the HRGC’s motion for reconsideration is denied.

(ECF No. 40.)

Done and ordered at Miami, Florida on July 19, 2021.

Hobert N. Vi Jr.

United States District Judge