Del Valle v. TRIVAGO GMBH

United States District Court

for the

Southern District of Florida

Mario Del Valle and others, )

Plaintiffs, )

)

v. ) Civil Action No. 19-22619-Civ-Scola

)

Trivago GMBH and others, )

Defendants. )

Order Granting Motion to Dismiss

This matter is before the Court on the joint motion to dismiss the third

amended complaint filed by Defendants Booking.com B.V., Booking Holdings Inc.

(collectively, the “Booking Defendants”) and Expedia Group., Inc., Hotels.com

L.P., Hotels.com GP, LLC, and Orbitz, LLC (collectively, the “Expedia Defendants,”

and with the Booking Defendants, the “Defendants”). (Mot. Dismiss, ECF

No. 112.) Plaintiffs Mario Del Valle, Enrique Falla, and Angelo Pou filed a

response to the motion. (Resp., ECF No. 113.) The Defendants filed a reply

memorandum in support of their joint motion. (Reply, ECF No. 118.) After careful

consideration of the briefing, the record, and the relevant legal authorities, the

Court grants the Defendants’ joint motion to dismiss. (ECF No. 112) and

dismisses the third amended complaint for failure to state a claim upon which

relief may be granted.

1. Background

The Plaintiffs Mario Del Valle, Enrique Falla, and Angelo Pou filed this

action against the Defendants pursuant to Title III of the Cuban Liberty and

Democratic Solidarity Act (the “Helms-Burton Act” or the “Act”). (Third Am.

Compl., ECF No 100.) The Act creates a private right of action against any person

who “traffics” in confiscated Cuban property. See 22 U.S.C. § 6082(a)(1)(A). A

purpose of the Helms-Burton Act is to “protect United States nationals against

confiscatory takings and the wrongful trafficking in property confiscated by the

Castro Regime.” 22 U.S.C. § 6022(6).

Each of the Plaintiffs claim to be an heir to one of three beach-front

properties in Cuba that were confiscated by the Cuban Government shortly after

the revolution in 1959. (Third Am. Compl. ¶¶ 33-53.) After seizing the properties,

the Cuban government demolished the beach houses on the Falla Property and

the Del Valle Property, and established a hotel called the Starfish Cuatro Palmas

on the land. (Id. ¶¶ 48-50.) The government established the Memories Jibacoa

Resort on the Muniz Property. (Id. ¶¶ 51-53.) The Starfish Cuatro Palmas and the

Memories Jibacoa are offered as lodging to visitors, including visitors who are

Florida and United States residents, through online booking providers like

Expedia, Inc. and Booking.com. (Id.)

The Defendants have allegedly trafficked in the properties by renting hotel

rooms to tourists and visitors from the United States and all over the world. (Id.

¶¶ 67-87.) On August 6, 2019, the Plaintiffs sent a notice to the Defendants

informing the Defendants of their intent to commence a lawsuit unless the

Defendants ceased trafficking on the Plaintiffs’ properties. (Id. ¶ 62, Ex. J.)

Despite notice of this potential suit, the Defendants continued trafficking on the

Plaintiffs’ properties until at least the time when this suit was filed. (Id. ¶¶ 63, 69,

79.)

Now, the Defendants jointly move to dismiss the third amended complaint

under Federal Rule of Civil Procedure 12(b)(6). The Defendants argue that the

Plaintiffs fail to plead sufficient facts to support ownership of valid claims under

the Act and that Plaintiffs Falla and Pou are unable to bring claims under the Act

because they acquired their alleged ownership interests after the Act’s claims bar

date. (Mot. Dismiss at 6-11). The Defendants also argue that the Plaintiffs have

failed to plead sufficient facts supporting the Defendants’ notice of the status of

the Plaintiffs’ properties and therefore fail to plead that the Defendants knowingly

and intentionally trafficked in the properties. (Id. at 11-14.) The Defendants next

argue that their conduct falls entirely within the Act’s lawful travel exception. (Id.

at 14-17.) The Defendants further assert that the Plaintiffs’ properties cannot be

considered confiscated properties under the terms of the Act. (Id. at 18-19.)

Finally, the Defendants argue that the Plaintiffs’ claims are inconsistent with the

Act because they allege only domestic takings of Cuban nationals’ property by the

Castro regime. (Id. at 19-20.)

The Plaintiffs oppose each argument. They argue first in response that

Plaintiffs Falla and Pou’s claims should be equitably tolled so that they may be

considered to have been acquired by the Act’s claims bar date. (Resp. at 4-7.)

Next, the Plaintiffs assert that their properties meet the Act’s definition of

confiscated property and that their claims are consistent with the Act because

they are United States nationals now. (Id. at 8-10.) The Plaintiffs further assert

that they have adequately alleged that the Defendants’ trafficking was knowing

and intentional because they provided the Defendants notice prior to this suit

and the Defendants were otherwise aware of the confiscation. (Id. at 10-12.)

Finally, the Plaintiffs argue that the Defendants’ lawful travel argument is an

affirmative defense that must be pleaded and proven by the Defendants, so it is

not applicable here, on a motion to dismiss. (Id. at 12-20.)

2. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), the Court must accept all of 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). A pleading need only contain “a

short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not

require detailed factual allegations, but it demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quotation omitted). A plaintiff must 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).

“A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not

akin to a ‘probability requirement,’ but it asks for more than a sheer possibility

that a defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Thus, a pleading that offers mere “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action” will not survive dismissal. See

Twombly, 550 U.S. at 555. “Rule 8 marks a notable and generous departure from

the hyper-technical, code-pleading regime of a prior era, but it does not unlock

the doors of discovery for a plaintiff armed with nothing more than conclusions.”

Iqbal, 556 U.S. at 679. Regardless of a plaintiff’s allegations, “the court may

dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) when, on

the basis of a dispositive issue of law, no construction of the factual allegations

will support the cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty.

Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).

3. Analysis

The Court finds that Plaintiffs Falla and Pou cannot plead a claim for relief

under the Helms Burton Act because they acquired claims after the Act’s claims

bar date, which acts as a total bar to recovery. Further, the Court finds that all

three of the Plaintiffs fail to adequately plead that the Defendants knowingly and

intentionally trafficked in the confiscated properties. Because these findings are

sufficient to determine that the third amended complaint must be dismissed and

therefore dispositive, the Court declines to address the remainder of the parties’

arguments relating to the Act, its definitions, and application here.

A. The Helms-Burton Act plainly bars relief for all claims acquired on or

after March 12, 1996.

Plaintiffs Falla and Pou affirmatively plead that they inherited their

interests in their families’ confiscated Cuban properties in 2004 and 2014,

respectively. (Third Am. Compl. ¶¶ 41, 45.) The Plaintiffs plead that the properties

in question were confiscated by the Castro regime in the 1960s (Falla’s family

property) and in 1959 (Pou’s). (Id. ¶¶ 48, 51.) As United States citizens, they now

seek relief under the Helms-Burton Act based on these confiscations. (Id. ¶¶ 3-4,

41-42, 45-47.)1

The Helms-Burton Act, however, sets a clear deadline for when United

States nationals may bring claims relating to the trafficking of their confiscated

property: “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). Plaintiffs Falla and Pou argue that

they should be allowed to assert their claims because their families owned the

claims prior to 1996, so they owned contingent interests in the claims, and

because the Act’s deadline should be equitably tolled due to presidential

suspension of the Act’s cause of action. (Resp. at 4-10.) These arguments are

unavailing for several reasons.

First, and most importantly, the Eleventh Circuit has unequivocally held

that courts “have no power to waive or extend [the Helms-Burton Act’s claims]

deadline.” Garcia-Bengochea v. Carnival Corp., 57 F.4th 916, 930–31 (11th Cir.

2023); see also Gonzalez v. Amazon.com, Inc., 835 F. App’x 1011, 1012 (11th Cir.

2021) (“The language that Congress used in this provision is clear and

unambiguous. A U.S. national whose property was confiscated before March 12,

1996, cannot recover damages for another person's unlawful trafficking of that

property unless “such national”—i.e., the specific person bringing suit—acquired

the claim to the property before March 12, 1996. And because the statute’s text is

plain, we have no power to waive or extend this deadline.”).

Garcia-Bengochea’s plain and unequivocal language sits directly at odds

with Falla and Pou’s arguments. 57 F.4th at 930-31. The Court must follow the

Eleventh Circuit’s clear holding here. But, even if the Eleventh Circuit had not

stated the case so plainly in Garcia-Bengochea, the Court would be compelled to

find that Falla and Pou’s arguments do not comport with the plain text of the

statute.

1 Plaintiff Del Valle pleads that he inherited his interest in his family’s confiscated Cuban property

in 1968. (Id. ¶ 36.) The Defendants do not dispute that his interests were acquired before the Act’s

claims bar date. The Court observes that Del Valle’s allegations regarding his ownership are

sufficient to state a claim for relief at this stage, despite the Defendants’ arguments that they are

not.

This Court has previously observed that Congress’s plain words and stated

legislative purpose behind the Helms-Burton Act’s claims bar date would bar the

recovery of any U.S. national who inherited a family member’s claim on or after

March 12, 1996:

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

national may not bring an action under [the Act] ... unless such national

acquires ownership of the claim before March 12, 1996.” 22 U.S.C.

§ 6082(a)(4)(B). In other words, the United States citizen filing suit must

already own the interest in the confiscated property on March 12,

1996 when the Act was passed. Congress intended that this requirement

prevent foreigners from “relocate[ing] to the United States for the purpose of

using this remedy” and that it “eliminate any incentive that might otherwise

exist to transfer claims to confiscated property to U.S. nationals in order to

take advantage of the remedy created by [the Act].” Conference Report at

H1660, 1996 WL 90487. Therefore, the Helms-Burton Act only applies to

claim owners who are already United States citizens at the time the Act was

passed on March 12, 1996. Id.

Gonzalez v. Amazon.com, Inc., No. 19-23988-CIV, 2020 WL 2323032, at *2 (S.D.

Fla. May 11, 2020) (Scola, J.) (“Gonzalez II”) (emphasis added), aff'd, 835 F. App’x

1011 (11th Cir. 2021).

In Gonzalez II, this Court addressed a remarkably similar situation: a

plaintiff who alleged that he acquired his Helms-Burton Act claim via family

inheritance in 2016. Id. at *2. This Court dismissed his claim for failure to state a

claim upon which relief could be granted, observing that “Congress did not intend

for those who acquired an interest in confiscated property after 1996 to bring

Helms-Burton Act claims if their property was confiscated before March 12,

1996.” Id. Plaintiffs Falla and Pou establish no different circumstances here—the

plaintiff in Gonzalez II certainly had the same interests prior to acquiring his

inheritance that Falla and Pou had—and the same outcome is compelled by the

Act’s plain terms and Congress’s stated purpose. Id.

Second, the Plaintiffs’ equitable tolling argument fares no better. “The

general test for equitable tolling requires the party seeking tolling to prove ‘(1)

that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.’” Villarreal v. R.J.

Reynolds Tobacco Co., 839 F.3d 958, 971 (11th Cir. 2016) (quoting Menominee

Indian Tribe of Wisc. v. United States, 577 U.S. 250, 255, (2016)).

As an initial matter, the Court observes that the Eleventh Circuit’s plain

and unequivocal language in Garcia-Bengochea likely means that the Court may

not apply the doctrine of equitable tolling here: “because the [Helms-Burton Act’s

text is plain, we have no power to waive or extend this deadline.” 57 F.4th at

931 (emphasis added).

But even if the Court could apply equitable tolling here, the Court finds no

extraordinary circumstances that would support it. Eleventh Circuit precedent

and the Helms-Burton Act’s plain language both require that the Court dismiss

Falla and Pou’s claims as untimely under the Act. As the Eleventh Circuit

observed in Villareal, “the ‘[p]rocedural requirements established by Congress for

gaining access to the federal courts are not to be disregarded by courts out of a

vague sympathy for particular litigants.’” 839 F.3d at 971 (quoting Baldwin Cty.

Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)). And “in the long run,

experience teaches that strict adherence to the procedural requirements specified

by the legislature is the best guarantee of evenhanded administration of the law.”

Id. (cleaned up). That concern is equally applicable here. The Court has already

reviewed above why Congress’s stated purpose in the Helms-Burton Act would be

frustrated by allowing claims acquired after the claims bar deadline to proceed.

To ensure “evenhanded administration of the law” here, the Court must apply the

plain language of the Helm Burton Act’s claims bar deadline as written. Id. In

doing so, the Court must then find that Plaintiffs Falla and Pou cannot state a

claim upon which relief may be granted under the Helms-Burton Act.2

B. None of the Plaintiffs pleads sufficient facts to support knowing and

intentional trafficking of the confiscated Cuban properties by the

Defendants.

The Helms-Burton Act also requires that plaintiffs demonstrate that

defendants “knowingly and intentionally trafficked” in confiscated property. 22

U.S.C. § 6023(13) (“a person ‘traffics’ in confiscated property if that person

knowingly and intentionally . . . engages in a commercial activity using or

otherwise benefiting from confiscated property.”). This Court has previously

observed that plaintiffs must therefore affirmatively plead that the defendants

knowingly and intentionally trafficked in confiscated property, and that plaintiffs

cannot rely on conclusory allegations or purely legal conclusions to meet that

pleading requirement:

As Representative Benjamin Gilman explained, ‘the 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 Complaint offers only conclusory

2 Further, the Court previously observed that any amendment of Pou’s claim (and likely Falla’s)

would be futile for this very reason. (Order Granting Mot. Dismiss at 8 n.2, ECF No. 71 (“The

Court also notes that it would be futile for Angelo Pou (and possibly for Enrique Falla) to amend

their complaint because they do not appear to have actionable ownership interests.”).

allegations that the Defendants knowingly and intentionally trafficked in

confiscated property. In paragraphs 18 and 19, Gonzalez alleges that the

Defendants ‘knowingly and intentionally commenced, conducted, and

promoted the sale of marabu charcoal produced on the Subject Property’

and that they ‘knowingly and intentionally participated in and profited from

the communist Cuban Government’s possession of the Subject Property.’

(ECF No. 1 at ¶¶ 18, 19.) These allegations are conclusory and, without any

other allegations demonstrating the Defendants’ knowledge, are legally

insufficient to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

557 (2007) (conclusory allegations cannot survive a motion to dismiss); see

also Ruiz v. Experian Information Solutions, Inc., 2017 WL 1378242, at *2

(S.D. Fla. Apr. 14, 2017) (Scola, J.) (conclusory allegation of knowledge is

not sufficient to satisfy the scienter requirement). Moreover, Gonzalez’s

assertion that the charcoal advertisement on Amazon, which states that it

is “Direct from Farmers in Cuba,” demonstrates the Defendants’ knowledge

is mistaken. That the charcoal is produced by Cuban farmers does not

demonstrate that the Defendants knew the property was confiscated by the

Cuban government nor that it was owned by a United States citizen.

Gonzalez v. Amazon.com, Inc., No. 19-23988-CIV, 2020 WL 1169125, at *2 (S.D.

Fla. Mar. 11, 2020) (Scola, J.) (“Gonzalez I”).

The Plaintiffs argue that this scienter requirement is met for three reasons.

None of those reasons is sufficient, however. Rather, the Plaintiffs only plead

conclusory statements of knowledge and intent, and the factual support that they

offer as an exhibit to their third amended complaint is not sufficient to have

placed the Defendants on notice that the Plaintiffs actually owned the properties

at issue here, or that those properties were wrongfully confiscated.

First, the Plaintiffs argue that the third amended complaint’s allegations

are sufficient to establish scienter on their own. (Resp. at 10-11.) The Plaintiffs

allege that the Expedia Defendants “knowingly and intentionally participated in

trafficking the Trafficked Hotels, which had been confiscated by the Communist

Cuban regime,” (Third Am. Compl. ¶ 67), and that the Booking Defendants

“knowingly and intentionally participated in trafficking the Plaintiff Heirs’

properties, which had been confiscated by the Cuban government.” (Id. ¶ 77.) The

Plaintiffs plead no other facts supporting the Defendants’ scienter prior to August

6, 2019. (Id. ¶ 62.) In light of this Court’s determination in Gonzalez I, these

conclusory allegations are clearly insufficient to support the Act’s scienter

requirement. 2020 WL 1169125, at *2.

Second, the Plaintiffs argue that a letter sent by their counsel to the

Defendant on August 6, 2019, gave the Defendants “actual notice of the

[P]laintiffs’ claim to the Trafficked Hotels.” (Third Am. Compl. ¶ 62, Ex. J.) The

letter, attached as an exhibit to the third amended complaint, reads in relevant

part as follows:

Mr. Del Valle, the rightful owner of property located in Varadero, intends to

sue BHI because it has trafficked in the property, as those terms are defined in

22 U.S.C. § 6023, confiscated by the Cuban government from the Del Valle

family. Mr. Echevarria and the Echevarria family, the rightful owners of Cayo

Coco, Cuba, intend to sue BHI because it has trafficked in property, as those

terms are defined in 22 U.S.C. § 6023, confiscated by the Cuban government

from the Echevarria family. Finally, Mr. Falla, the rightful owner of property

located in Varadero, intends to sue BHI because it has trafficked in the

property, as those terms are defined in 22 U.S.C. § 6023, confiscated by the

Cuban government from the Falla family.

(Id. Ex. J.) Crucially, the letter never defines or describes any of the properties

that the Plaintiffs allegedly own claims to in Cuba. (Id.) The letter never even

identifies that the properties the Plaintiffs purport to own claims to are being

used as hotels in Cuba or that the Plaintiffs believed the Defendants to be offering

rentals of hotel rooms at those properties. (Id.)

In other words, short of conducting an exhaustive investigation of all of the

properties in Varadero and Cayo Coco, the Defendants had no way of knowing

what properties the Plaintiffs were even referring to in this letter. See Gonzalez I,

2020 WL 1169125, at *2 (“Moreover, Gonzalez’s assertion that the charcoal

advertisement on Amazon, which states that it is ‘Direct from Farmers in Cuba,’

demonstrates the Defendants’ knowledge is mistaken. That the charcoal is

produced by Cuban farmers does not demonstrate that the Defendants knew the

property was confiscated by the Cuban government nor that it was owned by a

United States citizen.”). Therefore, the Plaintiffs fail to establish that the August

6, 2019, letter could have adequately put the Defendants on notice of the

properties’ status.

Third, and finally, the Plaintiffs argue that “President Clinton’s 1996

Signing Statement put the Traffickers on express notice that they faced ‘the

prospect of lawsuits and significant liability’ for trafficking, which would be

‘established irreversibly during the suspension period’” of the Helms-Burton Act.

(Resp. at 11.) This argument is meritless. It is so generally applicable that it is

generally unhelpful and meaningless. Clearly, in some general sense, any

company that does business in Cuba is on some general form of notice that the

property involved in that business may have been confiscated, both by the Act

itself and by the very nature of Cuba’s communist regime.

This is not what the Act itself requires to prove a claim, however. Rather, as

this Court observed in Gonzalez I, the Act requires factual pleadings supporting

allegations that the Defendants “knowingly and intentionally trafficking in the

stolen property of U.S. citizens.” 2020 WL 1169125, at *2 (citing 142 Cong. Rec.

H1724-04, at H1737 (Mar. 6, 1996)). General knowledge that property in Cuba

may have been confiscated, expropriated, or stolen by the Castro regime is not

sufficient.

Because all three of the Plaintiffs fail to plead sufficient facts demonstrating

the Defendants’ knowing and intentional trafficking in confiscated property, the

Court must dismiss the third amended complaint for failure to state a claim upon

which relief may be granted.

4. Conclusion

For the reasons stated above, the Court grants the Defendants’ joint

motion to dismiss the complaint (ECF No. 112) and dismisses the third amended

complaint, with prejudice. (ECF No. 100.) The Plaintiffs have had multiple

opportunities to plead valid claims and knowing and intentional trafficking by the

Defendants, but they have failed to do so. Further, the Plaintiffs have not

requested leave to amend; nor have they indicated in their response to the

Defendants’ motion any inclination whatsoever to do so. Wagner v. Daewoo Heavy

Industries Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (“A district court is not

required to grant a plaintiff leave to amend his complaint sua sponte when the

plaintiff, who is represented by counsel, never filed a motion to amend nor

requested leave to amend before the district court.”)

The Court will separately enter judgment pursuant to Federal Rule of Civil

Procedure 58. The Clerk is directed to close this case. Any pending motions are

denied as moot.

Done and ordered in Miami, Florida, on August 9, 2023.

Robert N. Scola, Jr.

United States District Judge