Havana Docks Corporation v. MSC Cruises SA CO et al

Filing 94

ORDER denying #69 Motion to Dismiss; denying as moot #86 Motion for Leave to File. Answer to Amended Complaint due 9/18/2020. Signed by Judge Beth Bloom on 9/7/2020. See attached document for full details. (pcs)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 19-cv-23588-BLOOM/Louis
HAVANA DOCKS CORPORATION,
Plaintiff,
v.
MSC CRUISES SA CO. and
MSC CRUISES (USA) INC.,
Defendants.
__________________________________/
ORDER
THIS CAUSE is before the Court upon Defendants MSC Cruises SA Co. and MSC
Cruises (USA) Inc. (collectively, “MSC”) Motion to Dismiss Amended Complaint, ECF No. [69]
(“Motion”). Plaintiff Havana Docks Corporation (“Havana Docks” or “Plaintiff”) filed its
Response in Opposition, ECF No. [73] (“Response”), to which MSC filed a Reply, ECF No. [77]
(“Reply”). MSC also submitted two Notices of Supplemental Authority in Support of its Motion
to Dismiss Amended Complaint, ECF Nos. [82] & [85], and Plaintiff submitted an additional
Notice of Supplemental Authority, ECF No. [89]. The Court has carefully considered the Motion,
all opposing and supporting submissions, the record in this case, and the applicable law, and is
otherwise fully advised. For the reasons set forth below, MSC’s Motion is denied.
I. BACKGROUND
A. The LIBERTAD Act
Since Fidel Castro seized power in Cuba in 1959, Cuba has been plagued by “communist
tyranny and economic mismanagement,” that has substantially deteriorated the welfare and health
of the Cuban people. See 22 U.S.C. §§ 6021(1)(A), (2). The communist Cuban Government has

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systematically repressed the Cuban people through, among other things, “massive and systemic
violations of human rights” and deprivations of fundamental freedoms, see id. §§ 6021(4), (24),
and the United States has consistently sought to impose effective international sanctions for these
violations against the Castro regime, see id. §§ 6021(8)-(10).
In 1996, Congress passed the Title III of the Cuban Liberty and Democratic Solidarity Act
of 1996, 22 U.S.C. § 6021, et seq. (the “LIBERTAD Act,” “Title III,” or the “Act”), commonly
referred to as the Helms-Burton Act, “to strengthen international sanctions against the Castro
government” and, relevant to the instant case, “to protect United States nationals against
confiscatory takings and the wrongful trafficking in property confiscated by the Castro regime.”
22 U.S.C. §§ 6022(2), (6). Under Title III of the Act, Congress denounced the Cuban
Government’s history of confiscating property of Cuban citizens and U.S. nationals, explaining
that “[t]he wrongful confiscation or taking of property belonging to United States nationals by the
Cuban Government, and the subsequent exploitation of this property at the expense of the rightful
owner, undermines the comity of nations, the free flow of commerce, and economic development.”
22 U.S.C. §§ 6081(2)-(3). The Act explains that foreign investors who traffic in confiscated
properties through the purchase of equity interests in, management of, or entry into joint ventures
with the Cuban Government to use such properties “complicate any attempt to return [these
expropriated properties] to their original owners.” Id. §§ 6081(5), (7). The LIBERTAD Act
cautions that:
[t]his “trafficking” in confiscated property provides badly needed financial benefit,
including hard currency, oil, and productive investment and expertise, to the current
Cuban Government and thus undermines the foreign policy of the United States—
(A) to bring democratic institutions to Cuba through the pressure of a
general economic embargo at a time when the Castro regime has proven to be
vulnerable to international economic pressure; and
(B) to protect the claims of United States nationals who had property
wrongfully confiscated by the Cuban Government.

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Id. §§ 6081(6)(A)-(B).
Further, the lack of effective international remedies for the wrongful confiscation of
property and for unjust enrichment from the use of that property by foreign governments at the
expense of the rightful owners left U.S. citizens without protection against wrongful confiscations
by foreign nations and their citizens. Id. § 6081(10). Congress therefore concluded that, “[t]o deter
trafficking in wrongfully confiscated property, United States nationals who were the victims of
these confiscations should be endowed with a judicial remedy in the courts of the United States
that would deny traffickers any profits from economically exploiting Castro’s wrongful seizures.”
Id. § 6081(11); see also 22 U.S.C. § 6082(a)(1)(A). As a result, in passing Title III of the
LIBERTAD Act, “Congress created a private right of action against any person who ‘traffics’ in
confiscated Cuban property.” Garcia-Bengochea v. Carnival Corp., 407 F. Supp. 3d 1281, 1284
(S.D. Fla. 2019) (citing 22 U.S.C. § 6082(a)(1)(A); 22 U.S.C. § 6023(13)(A)).
Shortly after Helms-Burton was passed, however, the President invoked Title III’s
[suspension] provision, and “Title III has since been waived every six
months, . . . and has never effectively been applied.” Odebrecht Const., Inc. v.
Prasad, 876 F. Supp. 2d 1305, 1312 (S.D. Fla. 2012). That changed on April 17,
2019, when the U.S. Department of State announced that the federal government
“will no longer suspend Title III.” See U.S. Department of State, Secretary of State
Michael R. Pompeo’s Remarks to the Press (Apr. 17, 2019),
https://www.state.gov/remarks-to-the-press-11/.
Id.; see also 22 U.S.C. § 6085(c) (presidential power to suspend the right to bring a cause of action
under Title III). On May 2, 2019, the suspension of claimants’ rights to bring actions under Title
III was lifted, enabling them to file suit against alleged traffickers.
B. This Case
On August 27, 2019, Havana Docks initiated this action against MSC pursuant to Title III
of the LIBERTAD Act for MSC’s alleged trafficking in property that was confiscated from

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Plaintiff by the Cuban Government in 1960. ECF No. [1]. On April 20, 2020, Plaintiff filed an
Amended Complaint, ECF No. [56],1 which alleges the following facts:
Havana Docks is a U.S. national, as defined by 22 U.S.C. § 6023(15), and “is the rightful
owner of an interest in and certified claim to certain commercial waterfront real property in the
Port of Havana, Cuba,” identified as the Havana Cruise Port Terminal (the “Subject Property”).
ECF No. [56] ¶ 7. Plaintiff continuously owned, possessed, managed, and used the Subject
Property from 1917 until the Cuban Government confiscated it in 1960, id. ¶ 8, and that, since the
confiscation, the Subject Property has not been returned, nor has Havana Docks received adequate
or effective compensation for the confiscation of the Subject Property, id. ¶¶ 9-10. Havana Docks’
claim to the Subject Property has never been settled pursuant to any international claim settlement
agreement or other settlement procedure. Id. ¶ 10.
Plaintiff’s ownership interest in and claim to the Subject Property has been certified by the
Foreign Claims Settlement Commission (the “FCSC”) pursuant to the International Claims
Settlement Act of 1949, 22 U.S.C. § 1621, et seq. (the “Claims Settlement Act”). Id. ¶ 12.2 In the
Certified Claim, a copy of which is attached to Plaintiff’s Amended Complaint, the FCSC found,
based on the record before it, that:
[Havana Docks] obtained from the Government of Cuba the renewal of a
concession for the construction and operation of wharves and warehouses in the
harbor of Havana, formerly granted to its predecessor concessionaire, the Port of
The Court previously provided a detailed review of the procedural history in this case and Havana Docks’
related cases. Havana Docks Corp. v. MSC Cruises SA Co., No. 19-cv-23588, 2020 WL 2534295, at *1
(S.D. Fla. Apr. 17, 2020) (“MSC”), certificate of appealability denied, No. 19-cv-23588, 2020 WL 3451681
(S.D. Fla. June 24, 2020); see generally Havana Docks Corp. v. Carnival Corp., No. 19-cv-21724 (S.D.
Fla. 2019) (“Carnival”); Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., No. 19-cv-23590 (S.D.
Fla. 2019) (“Royal Caribbean”); Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd., No. 19cv-23591 (S.D. Fla. 2019) (“NCL”). As such, the Court will not repeat the history of this litigation in this
Order, except where relevant to the instant Motion.
1

The Court will refer to Havana Docks’ claim to the Subject Property, ECF No. [56-1], as the “Certified
Claim” for the remainder of this Order.
2

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Havana Docks Company; that claimant acquired at the same time the real property
with all improvements and appurtenances located on the Avenida del Puerto
between Calle Amargura and Calle Santa Clara in Havana, facing the Bay of
Havana; . . . and that claimant corporation also owned the mechanical installations,
loading and unloading equipment, vehicles and machinery, as well as furniture and
fixtures located in the offices of the corporation.
ECF No. [56-1] at 7. “The concession granted the Plaintiff a term of 99 years for the use of,
improvement, construction upon, operation and management of the Subject Property,” from which
Havana Docks benefitted until 1960, when the Subject Property was confiscated by the Cuban
Government, along with all of its other property interests. ECF No. [56] ¶ 15. “The concession
never expired by its term.” Id. Rather, when the Subject Property was confiscated, “Havana Docks
still had a balance of 44 years of concessionary rights remaining . . . [and] Plaintiff has never
received any compensation nor been indemnified for the expropriation of the Subject Property,
including for the concession or any other property interests.” Id. ¶¶ 15, 18.
Moreover, according to the Amended Complaint, beginning on or about December 2018,
MSC “knowingly and intentionally commenced, conducted, and promoted their commercial cruise
line business to Cuba using the Subject Property by regularly embarking and disembarking their
passengers on the Subject Property without the authorization of Plaintiff or any U.S. national who
holds a claim to the Subject Property.” Id. ¶ 21. MSC has had constructive knowledge of Plaintiff’s
publicly available Certified Claim to the Subject Property since the FCSC completed the Cuban
Claims Program on July 6, 1972. Id. ¶ 23. Moreover, MSC has “had actual knowledge of Plaintiff’s
[Certified Claim] . . . since at least February 11, 2019, due to a notice letter sent by Plaintiff to
[MSC] pursuant to 22 U.S.C. § 6082(a)(3)(D).” Id. ¶ 24. “On information and belief, [MSC]
trafficked in the Subject Property until June 2019.” Id. ¶ 25. Thus, MSC is alleged to have
knowingly and intentionally participated in, and profited from, the Cuban Government’s
confiscation and possession of the Subject Property without Plaintiff’s authorization. Id. ¶ 22.

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Plaintiff further alleges that MSC’s knowing and intentional conduct relating to the Subject
Property constitutes “trafficking,” as set forth under 22 U.S.C. § 6023(13)(A), and that MSC is
liable to Havana Docks for all money damages allowed by statute. ECF No. [56] ¶¶ 26-27.
MSC now files the instant Motion asserting the following bases for dismissal: (1) Havana
Docks lacks Article III standing to sue because it cannot allege injury in fact that is traceable to
MSC’s conduct; (2) Applying Title III to MSC’s pre-May 2019 operations in Cuba violates the Ex
Post Facto Clause because such application would be both retroactive and punitive; (3) Applying
Title III to MSC’s operations in Cuba violates the Due Process Clause because MSC was not given
fair notice of its potential liability through the Act’s retroactive application; (4) Title III’s penalties
are grossly excessive and arbitrary in violation of the Due Process Clause; and (5) Havana Docks
has failed to sufficiently allege that MSC trafficked in each property interest contained within the
Certified Claim. In its Response, Havana Docks takes the opposing position on each of MSC’s
bases for dismissal.
II. LEGAL STANDARD
A. Article III Standing
One element of the case-or-controversy requirement under Article III of the United States
Constitution is that plaintiffs “must establish that they have standing to sue.” Raines v. Byrd, 521
U.S. 811, 818 (1997). It is a threshold question of “whether the litigant is entitled to have the court
decide the merits of the dispute or of particular issues.” Sims v. Fla. Dep’t of Highway Safety &
Motor Vehicles, 862 F.2d 1449, 1458 (11th Cir. 1989) (en banc). “‘The law of Article III
standing . . . serves to prevent the judicial process from being used to usurp the powers of the
political branches,’ and confines the federal courts to a properly judicial role.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016) (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408

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(2013); Warth v. Seldin, 422 U.S. 490, 498 (1975)). Further, “standing requirements ‘are not mere
pleading requirements but rather [are] an indispensable part of the plaintiff’s case.’” Church v.
City of Huntsville, 30 F.3d 1332, 1336 (11th Cir. 1994) (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992)). “Indeed, standing is a threshold question that must be explored at the
outset of any case.” Corbett v. Transp. Sec. Admin., 930 F.3d 1225, 1232 (11th Cir. 2019) (citing
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)), cert. denied, 140 S. Ct. 900
(2020). “In its absence, ‘a court is not free to opine in an advisory capacity about the merits of a
plaintiff’s claim.’” Id. (quoting Bochese, 405 F.3d at 974). “In fact, standing is ‘perhaps the most
important jurisdictional’ requirement, and without it, [federal courts] have no power to judge the
merits.” Id. (footnote omitted) (quoting Bochese, 405 F.3d at 974).
[A]t an irreducible minimum, Art. III requires the party who invokes the court’s
authority to “show that he personally has suffered some actual or threatened injury
as a result of the putatively illegal conduct of the defendant,” and that the injury
“fairly can be traced to the challenged action” and “is likely to be redressed by a
favorable decision.”
Valley Forge Christian Coll. v. Americans United for Separation of Church and State, 454 U.S.
464, 472 (1982) (quoting Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979)). In
other words, to establish standing, a plaintiff must allege that: (1) it “suffered an injury in fact that
is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;” (2)
“the injury is fairly traceable to conduct of the defendant;” and (3) “it is likely, not just merely
speculative, that the injury will be redressed by a favorable decision.” Kelly v. Harris, 331 F.3d
817, 819-20 (11th Cir. 2003).
“The party invoking federal jurisdiction bears the burden of proving standing.” Fla. Pub.
Int. Rsch. Grp. Citizen Lobby, Inc. v. E.P.A., 386 F.3d 1070, 1083 (11th Cir. 2004) (quoting
Bischoff v. Osceola Cty., 222 F.3d 874, 878 (11th Cir. 2000)). “If at any point in the litigation the
plaintiff ceases to meet all three requirements for constitutional standing, the case no longer
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presents a live case or controversy, and the federal court must dismiss the case for lack of subject
matter jurisdiction.” Fla. Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296, 1302
(11th Cir. 2011) (citing CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1277 (11th
Cir. 2006)). “In assessing the propriety of a motion for dismissal under Fed. R. Civ. P. 12(b)(1), a
district court is not limited to an inquiry into undisputed facts; it may hear conflicting evidence
and decide for itself the factual issues that determine jurisdiction.” Colonial Pipeline Co. v.
Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). “When a defendant properly challenges subject
matter jurisdiction under Rule 12(b)(1) the district court is free to independently weigh facts, and
‘may proceed as it never could under Rule 12(b)(6) or Fed. R. Civ. P. 56.’” Turcios v. Delicias
Hispanas Corp., 275 F. App’x 879, 880 (11th Cir. 2008) (quoting Morrison v. Amway Corp., 323
F.3d 920, 925 (11th Cir. 2003)).
B. Rule 12(b)(6) Motion
A pleading must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need detailed factual
allegations,” it must provide “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s pleading
standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”).
In the same vein, a complaint may not rest on “‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557).
“Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. These elements are required to survive a motion brought under Rule 12(b)(6) that
requests dismissal for failure to state a claim upon which relief can be granted.

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When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the
plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor
of the plaintiff. Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d
1076, 1084 (11th Cir. 2002). However, this tenet does not apply to legal conclusions, and courts
“are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550
U.S. at 555; see also Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff’s Office, 449 F.3d
1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the factual allegations in the
complaint ‘obvious alternative explanations,’ which suggest lawful conduct rather than the
unlawful conduct the plaintiff would ask the court to infer.” Am. Dental Ass’n v. Cigna Corp., 605
F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682).
A court, in considering a Rule 12(b)(6) motion, “may consider only the complaint itself
and any documents referred to in the complaint which are central to the claims.” Wilchombe v.
TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (citing Brooks v. Blue Cross & Blue Shield
of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)); see also Maxcess, Inc. v. Lucent Techs., Inc.,
433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (“[A] document outside the four corners of the complaint
may still be considered if it is central to the plaintiff’s claims and is undisputed in terms of
authenticity.” (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002))).
III. DISCUSSION
As noted, MSC’s Motion asserts numerous bases for dismissal: (1) Havana Docks lacks
Article III standing; (2) Applying Title III violates the Ex Post Facto Clause; (3) Applying Title
III violates the Due Process Clause; (4) Title III imposes penalties for liability that are grossly
excessive and arbitrary in violation of the Due Process Clause; and (5) Plaintiff failed to allege

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that MSC trafficked in each property interest listed in the Certified Claim. Plaintiff takes the
opposing position on each of these bases for dismissal. The Court addresses each argument in turn.
A. Article III Standing
MSC first challenges Havana Docks’ Article III standing, arguing Plaintiff cannot allege
any concrete injury in fact that is fairly traceable to MSC’s conduct. Havana Docks responds that
it has sufficiently satisfied all of the Article III standing requirements at this stage in the litigation.
MSC, in its Reply, contends that the only injury Havana Docks has asserted is the confiscation,
which is only traceable to the Cuban Government, not to MSC, and that none of MSC’s conduct
harmed Plaintiff. MSC also submitted two Notices of Supplemental Authority in support of the
Motion, which appended two recent cases that address Article III standing: Trichell v. Midland
Credit Management, Inc., 964 F.3d 990 (11th Cir. 2020), and Glen v. American Airlines, Inc., No.
4:20-cv-482-A, 2020 WL 4464665, at *1 (N.D. Tex. Aug. 3, 2020). See ECF Nos. [82] & [85].
Similarly, Plaintiff submitted a Notice of Supplemental Authority in support of its argument that
it has Article III standing: Cueto Iglesias v. Pernod Ricard, No. 20-cv-20157 (S.D. Fla. Aug. 17,
2020). See ECF No. [89].
As discussed above, Article III standing “is a doctrine rooted in the traditional
understanding of a case or controversy.” Spokeo, Inc., 136 S. Ct. at 1547 (citing Raines, 521 U.S.
at 820). “[T]he irreducible constitutional minimum of standing contains three elements,” Lujan,
504 U.S. at 560, namely, (1) injury in fact that is concrete, particularized, and not conjectural;
(2) causation or traceability; and (3) redressability. Corbett, 930 F.3d at 1232. “At the pleading
stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for
on a motion to dismiss [courts] ‘presum[e] that general allegations embrace those specific facts

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that are necessary to support the claim.’” Lujan, 504 U.S. at 561 (quoting Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 889 (1990)).
The Court will address each element of Article III standing individually below.
1. Injury in Fact
“The ‘foremost’ standing requirement is injury in fact.” Trichell, 964 F.3d at 996 (quoting
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998)).
An injury in fact consists of “an invasion of a legally protected interest” that is both
“concrete and particularized” and “actual or imminent, not conjectural or
hypothetical.” [Lujan,] 504 U.S. at 560 (quotation marks omitted). A “concrete”
injury must be “de facto” — that is, it must be “real, and not abstract.” Spokeo, Inc.,
136 S. Ct. at 1548 (quotation marks omitted). A “particularized” injury “must affect
the plaintiff in a personal and individual way.” Id. (quotation marks omitted). Each
subsidiary element of injury — a legally protected interest, concreteness,
particularization, and imminence — must be satisfied. See id. at 1545; [Lujan,] 504
U.S. at 560.
Id. at 996-97.
MSC argues Plaintiff cannot allege facts to support the elements of injury in fact — namely,
a legally protected interest, concreteness, particularization, and imminence. See ECF No. [69] at
3-5; see also Trichell, 964 F.3d at 996-97 (“Each subsidiary element of injury . . . must be satisfied
[for standing].”).
First, legally protected interest. “No legally cognizable injury arises unless an interest is
protected by statute or otherwise.” Cox Cable Commc’ns, Inc. v. United States, 992 F.2d 1178,
1182 (11th Cir. 1993); see also Bochese, 405 F.3d at 980. “That ‘interest must consist of obtaining
compensation for, or preventing, the violation of a legally protected right.’” Bochese, 405 F.3d at
980-81 (quoting Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 772 (2000)). Here,
Havana Docks alleges it has a Certified Claim to the Subject Property, and that MSC trafficked in
the Subject Property without authorization. Under the Act, trafficking in confiscated property is
an invasion of a legally protected interest — i.e. a statutorily constructed property interest in the
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Subject Property, which conveys a right to prevent third-party use of the same. The remedy for the
violation of that right is compensation from third parties for trafficking in the Subject Property.
That the legal right and remedy at issue in this case are statutorily constructed does not sway the
Court’s analysis in favor of MSC, because, as discussed in the ensuing sections, Plaintiff’s injury
is concrete, particularized, and imminent.
Second, concreteness. Although a statutorily-constructed right may be insufficient to
convey standing on its own,3 Trichell, 964 F.3d at 997 (“Article III standing requires a concrete
injury even in the context of a statutory violation.” (quoting Spokeo, Inc., 136 S. Ct. at 1549)), it
is sufficient where the right is constructed to address a concrete harm. See also Spokeo, Inc., 136
S. Ct. at 1549 (“Congress may elevate to the status of legally cognizable injuries concrete, de facto
injuries that were previously inadequate in law.” (alteration adopted; citation and internal quotation
mark omitted)). As detailed above, Congress was prompted to enact Title III because the remedies
for (1) the wrongful confiscation of property by foreign governments; and (2) the subsequent
unjust enrichment and economic exploitation of that property by foreign investors at the expense
of the rightful owners, were ineffective. 22 U.S.C. § 6081(10).4 Quite simply, the right identified

The Court notes “[i]njury in fact is a constitutional requirement, and ‘[i]t is settled that Congress cannot
erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not
otherwise have standing.’” Spokeo, Inc., 136 S. Ct. at 1547-48 (quoting Raines, 521 U.S. at 820 n.3); see
also Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009). “Even when [the] political branches appear
to have granted [federal courts] jurisdiction by statute and rule, [federal courts] are still obliged to examine
whether jurisdiction exists under the Constitution.” Salcedo v. Hanna, 936 F.3d 1162, 1166 (11th Cir.
2019). Ultimately, “Congress’ role in identifying and elevating intangible harms does not mean that a
plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory
right and purports to authorize that person to sue to vindicate that right.” Spokeo, Inc., 136 S. Ct. at 1549.
Rather, “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. As
explained in this section, the Court has examined the alleged rights and injuries and finds that Plaintiff has
established an injury in fact.
3

Title III makes it clear that “[t]he wrongful confiscation or taking of property belonging to United States
nationals by the Cuban Government, and the subsequent exploitation of this property at the expense of the
rightful owner,” 22 U.S.C. §§ 6081(2)-(3), by foreign investors who traffic in confiscated properties
“complicate any attempt to return [these expropriated properties] to their original owners,” id. §§ 6081(5),
4

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by Congress was a property interest, and MSC presents no clear argument why an infringement on
a property right lacks concreteness. MSC appears to argue that the injury here is not concrete
because it began years ago when the Subject Property was initially confiscated by the Cuban
Government. While the injury may have its origin in the confiscation, MSC does not explain how
its continued use of the Subject Property makes Plaintiff’s harm less tangible today. Stated
otherwise, Havana Docks’ injury is “real” because it is not receiving the benefit of its interest in
the Subject Property and MSC’s subsequent trafficking in the confiscated property has undermined
Plaintiff’s right to compensation for that expropriation
Moreover, MSC’s Notices of Supplemental Authority, ECF Nos. [82] & [85], are
inapposite. In particular, the facts of this case are distinguishable from those in Trichell because
Havana Docks sufficiently alleges that MSC profited from its use of the Subject Property at
Havana Docks’ expense, ECF No. [56] ¶¶ 21-22, whereas Trichell involved a statutory violation
without any corresponding concrete injury to the plaintiffs. Moreover, the district court in Glen v.
American Airlines observed that the plaintiff admitted that neither the Cuban government’s
confiscation of the properties nor the hotels’ operations constituted injuries in fact. Contrary to the
conclusion in Glen v. American Airlines that the plaintiff had no standing because there was no
allegation of concrete harm, the Court finds that the allegations of profiting from the use of
property that was expropriated without obtaining consent or paying adequate compensation to the
original owner is sufficient concrete harm for standing purposes. See, e.g., Glen v. Club
Mediterranee S.A., 365 F. Supp. 2d 1263, 1272 (S.D. Fla. 2005) (explaining that the injury to a
plaintiff whose property was expropriated was a lack of compensation (citing Talenti v. Clinton,
102 F.3d 573, 578 (D.C. Cir. 1996)), aff’d, 450 F.3d 1251 (11th Cir. 2006).
(7), and undermine U.S. foreign policy aiming “to protect the claims of United States nationals who had
property wrongfully confiscated by the Cuban Government,” id. § 6081(6)(B).

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Third, particularity. Havana Docks argues its injury is particularized because the injury is
entirely personalized to its interest in its Certified Claim to the Subject Property, and MSC does
not contest this point. The Court concludes that Havana Docks’ injuries here are particularized
because, rather than presenting a generalized harm, Havana Docks’ injury is entirely personalized
to its interest in its Certified Claim to the Subject Property. See ECF No. [56] ¶¶ 12-17. Stated
differently, Plaintiff seeks only to vindicate its own property rights in this action. Spokeo, Inc., 136
S. Ct. at 1548 (“For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and
individual way.’” (citation omitted)). This is sufficient for particularity.
Fourth, imminence. Although MSC raises no issue regarding imminence in this case, the
Court nonetheless has an independent obligation to address all aspects of its jurisdiction.
Imminence is satisfied where, as here, “both the challenged conduct and the attendant injury have
already occurred.” Robins v. Spokeo, Inc., 867 F.3d 1108, 1118 (9th Cir. 2017). Accordingly,
Havana Docks’ injury here is actual and not conjectural.
In sum, Havana Docks has alleged sufficient facts to recover monetary damages for the
injuries it sustained as a result of MSC’s unlawful trafficking in the Subject Property, to which it
owns a Certified Claim.5

5

As the Eleventh Circuit explained in Glen, Title III’s purpose is
to deter third party foreign investors from trafficking in the confiscated property (defined
as “purchas[ing] an equity interest in, manag[ing], or enter[ing] into joint ventures using
property and assets some of which were confiscated from United States nationals.”). See
22 U.S.C. § 6081(5), (6), (11). This purpose is achieved through the establishment of a new
statutory remedy available (if not suspended) to “United States nationals who were the
victims of these confiscations . . . [to] deny traffickers any profits from economically
exploiting Castro’s wrongful seizures.” 22 U.S.C. § 6081(11). The Helms-Burton Act
refers to the property interest that former owners of confiscated property now have as
ownership of a “claim to such property.” 22 U.S.C. § 6082(a)(1)(A). When (or if) the
portion of Title III that allows private litigants to bring lawsuits becomes effective, actions
brought pursuant to the new statutory scheme would be actions brought “on a claim to the
confiscated property” against traffickers in the property. 22 U.S.C. § 6082(a)(4).

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2. Causation
To establish Article III standing, a plaintiff must also demonstrate that the injuries
sustained are fairly traceable to the defendant’s conduct.
To satisfy Article III’s causation requirement, the [] plaintiffs must allege that their
injuries are “connect[ed] with the conduct of which [they] complain.” Trump v.
Hawai’i, 138 S. Ct. 2392, 2416 (2018). See also Duke Power Co. v. Envtl. Study
Grp., 438 U.S. 59, 75 n.20 (1978) (explaining that Article III standing “require[s]
no more than a showing that there is a substantial likelihood” of causation)
(quotation marks omitted). Significantly, “[p]roximate causation is not a
requirement of Article III standing, which requires only that the plaintiff’s injury
be fairly traceable to the defendant’s conduct.” Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 134 n.6 (2014). “[E]ven harms that flow
indirectly from the action in question can be said to be ‘fairly traceable’ to that
action for standing purposes.” Focus on the Family v. Pinellas Suncoast Transit
Auth., 344 F.3d 1263, 1273 (11th Cir. 2003). A plaintiff therefore need not show
(or, as here, allege) that “the defendant’s actions are the very last step in the chain
of causation.” [Bennett v. Spear, 520 U.S. 154, 168-69 (1997). See also Moody v.
Warden, 887 F.3d 1281, 1285 (11th Cir. 2018)] (explaining that we “must not
confuse weakness on the merits with absence of Article III standing”) (citation and
quotation marks omitted).
Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1125-26 (11th Cir. 2019), cert. denied, No. 19-1185,
2020 WL 2814788 (2020).
“Congress has the power to define injuries and articulate chains of causation that will give
rise to a case or controversy where none existed before.” Spokeo, Inc., 136 S. Ct. at 1549 (emphasis
added) (citation omitted). In enacting Title III, Congress recognized that there exists a causal link
between a claimant’s injury from the Cuban Government’s expropriation of their property and a
subsequent trafficker’s unjust enrichment from its use of that confiscated property. See 22 U.S.C.
§ 6081(10) (noting the lack of effective international remedies for the wrongful confiscation of
property by foreign governments and the subsequent unjust enrichment by foreign investors from
the use of that property at the expense of the rightful owners).

Glen v. Club Mediterranee, S.A., 450 F.3d 1251, 1255 (11th Cir. 2006) (footnote omitted).

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Thus, under Spokeo, Inc., any argument that the causal chain ceases with the Cuban
Government falls short. MSC argues that Plaintiff’s injury is not attributable to MSC’s conduct,
but rather to the Cuban Government’s expropriation, and that the traceability prong of standing is
therefore not met here. However, MSC’s purported reliance on Trichell misses the mark because
Trichell does not stand for the notion that such causal links are insufficient to establish Article III
standing, where a concrete and particularized injury otherwise exists. Thus, the Court concludes
that MSC’s conduct of using and profiting from the Subject Property is fairly traceable to
Plaintiff’s claimed injuries. See Focus on the Family, 344 F.3d at 1273 (“[E]ven harms that flow
indirectly from the action in question can be said to be ‘fairly traceable’ to that action for standing
purposes.”).
3. Redressability
The final element of Article III standing is redressability.
The element of redressability requires that “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Lujan, 504
U.S. at 561 (internal quotation marks omitted). “Redressability is established when
a favorable decision would amount to a significant increase in the likelihood that
the plaintiff would obtain relief that directly redresses the injury suffered.” Mulhall
v. UNITE HERE Local 355, 618 F.3d 1279, 1290 (11th Cir. 2010) (alteration and
internal quotation marks omitted). [Courts] must be able “to ascertain from the
record whether the relief requested is likely to redress the alleged injury,” [Steele
v. Nat’l Firearms Act Branch, 755 F.2d 1410, 1415 (11th Cir. 1985)] . . . . See
[DiMaio v. Democratic Nat’l Comm., 520 F.3d 1299, 1303 (11th Cir. 2008)]
(dismissing complaint for lack of standing because it did not “suggest in any way
how [the] ‘injury’ could be redressed by a favorable judgment”).
Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1266 (11th Cir. 2011).
The Court of Appeals for the Eleventh Circuit has explained that, where the injury alleged
is a monetary injury, such an injury can be redressed by an award of compensatory damages. See,
e.g., Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012) (“Plaintiffs allege a monetary
injury and an award of compensatory damages would redress that injury.”); see also Made in the

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USA Found. v. United States, 242 F.3d 1300, 1310-11 (11th Cir. 2001) (explaining that even partial
relief suffices for redressability).
Although MSC does not raise any challenge to the redressability prong of Plaintiff’s Article
III standing, the Court must nonetheless assure itself that redressability is met here. Havana Docks
also notes that a favorable decision would directly redress its injury by compensating Plaintiff for
the value of its interests in the Subject Property that were confiscated, and the Court agrees.
Obtaining a favorable judgment would allow Plaintiff to recover monetary damages as provided
by Title III—compensation which would sufficiently redress the harm Havana Docks suffered
from the Cuban Government’s confiscation of the Subject Property and MSC’s subsequent unjust
enrichment from the use of the confiscated property at Plaintiff’s expense. See, e.g., Resnick, 693
F.3d at 1324 (“Plaintiffs allege a monetary injury and an award of compensatory damages would
redress that injury.”); Wilding, 941 F.3d at 1127 (same); Via Mat Int’l S. Am. Ltd. v. United States,
446 F.3d 1258, 1263 (11th Cir. 2006) (“‘Substantial economic harm is plainly the type of injury
for which parties may seek redress in federal court.’ The injury was ‘the direct result of “putatively
illegal” [G]overnmental action in the form of an allegedly unlawful forfeiture. This injury would
be redressed by a successful challenge to the forfeiture. Article III does not require more.’”
(quoting United States v. Cambio Exacto, 166 F.3d 522, 528 (2nd Cir. 1999))). At this stage, the
Court concludes that Plaintiff has sufficiently established the redressability requirement of Article
III standing.
Based on the discussion above, the Court finds that Havana Docks has met its burden at
this stage of establishing injury in fact, causation, and redressability, as required for Article III
standing. As such, MSC’s Motion is denied as it relates to Plaintiff’s alleged lack of standing.

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B. Ex Post Facto Clause
MSC argues that applying Title III to its pre-May 2019 conduct in Cuba would violate the
Ex Post Facto Clause. It urges that such an application would be retroactive, given the suspension
of lawsuits under Title III since the LIBERTAD Act’s enactment in 1996, and would impose treble
damages that are so punitive as to constitute criminal penalties. Havana Docks responds that
applying Title III to MSC would not violate the Ex Post Facto Clause because there is no
retroactive application—Title III was enacted in 1996 and has been in force since then, despite the
suspension of Title III lawsuits from 1996 until 2019.
“The Ex Post Facto Clause prohibits Congress and state legislatures from enacting ‘any
law which imposes a punishment for an act which was not punishable at the time it was committed;
or imposes additional punishment to that then prescribed.’” Holland v. Governor of Ga., 781 F.
App’x 941, 944 (11th Cir. 2019) (quoting United States v. W.B.H., 664 F.3d 848, 852 (11th Cir.
2011)). “The presumption against the retroactive application of new laws is an essential thread in
the mantle of protection that the law affords the individual citizen. That presumption ‘is deeply
rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.’”
Lynce v. Mathis, 519 U.S. 433, 439 (1997) (quoting Landgraf v. USI Film Prods., 511 U.S. 244,
265 (1994)). The ex post facto prohibition “is only one aspect of the broader constitutional
protection against arbitrary changes in the law. In both the civil and the criminal context, the
Constitution places limits on the sovereign’s ability to use its lawmaking power to modify bargains
it has made with its subjects.” Id. at 440.
The Ex Post Facto Clause
prohibits [Congress] from enacting “any law ‘which imposes a punishment for an
act which was not punishable at the time it was committed; or imposes additional
punishment to that then prescribed.’” Weaver v. Graham, 450 U.S. 24, 28 (1981)
(quoting Cummings v. Missouri, 4 Wall. 277, 325-26 (1867)). Thus, in order for a

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criminal or penal law to be ex post facto, it must be retroactively applied and must
disadvantage the offender because it may impose greater punishment. Id. at 29.
Furthermore, the law need not impair a “vested right” to be ex post facto; a violation
may occur when the law “merely alters penal provisions accorded by the grace of
the legislature [.]” Id. at 30. However, if a statute is merely procedural and does not
affect the quantum of punishment attached to the crime, there is no ex post facto
violation even when the statute is applied retroactively. Dobbert v. Florida, 432
U.S. 282, 293 (1977). The Ex Post Facto Clause operates not to protect an
individual’s right to less punishment, but rather as a means of assuring that an
individual will receive fair warning of criminal statutes and the punishments they
carry. Weaver, 450 U.S. at 28-30; Dobbert, 432 U.S. at 298.
Hock v. Singletary, 41 F.3d 1470, 1471-72 (11th Cir. 1995). “This prohibition applies only to
criminal laws, not to civil regulatory regimes.” Holland, 781 F. App’x at 944 (citing W.B.H., 664
F.3d at 852). Nonetheless, “the constitutional provision was intended to secure substantial personal
rights against arbitrary and oppressive legislation, see Malloy v. South Carolina, 237 U.S. 180,
183 (1915), and not to limit the legislative control of remedies and modes of procedure which do
not affect matters of substance.” Dobbert, 432 U.S. at 293 (quoting Beazell v. Ohio, 269 U.S. 167,
171 (1925)).
Title III explicitly sets forth its effective date and the procedures regarding the president’s
suspension authority:
(a) In general
Subject to subsections (b) and (c), this subchapter and the amendments
made by this subchapter shall take effect on August 1, 1996.
(b) Suspension authority
(1) Suspension authority
The President may suspend the effective date under subsection (a) for a
period of not more than 6 months if the President determines and reports in writing
to the appropriate congressional committees at least 15 days before such effective
date that the suspension is necessary to the national interests of the United States
and will expedite a transition to democracy in Cuba.
(2) Additional suspensions
The President may suspend the effective date under subsection (a) for
additional periods of not more than 6 months each, each of which shall begin on
the day after the last day of the period during which a suspension is in effect under
this subsection, if the President determines and reports in writing to the appropriate
congressional committees at least 15 days before the date on which the additional
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suspension is to begin that the suspension is necessary to the national interests of
the United States and will expedite a transition to democracy in Cuba.
(c) Other authorities
(1) Suspension
After this subchapter and the amendments of this subchapter have taken
effect—
....
(B) the President may suspend the right to bring an action under this
subchapter with respect to confiscated property for a period of not more than 6
months if the President determines and reports in writing to the appropriate
congressional committees at least 15 days before the suspension takes effect that
such suspension is necessary to the national interests of the United States and will
expedite a transition to democracy in Cuba.
(2) Additional suspensions
The President may suspend the right to bring an action under this subchapter
for additional periods of not more than 6 months each, each of which shall begin
on the day after the last day of the period during which a suspension is in effect
under this subsection, if the President determines and reports in writing to the
appropriate congressional committees at least 15 days before the date on which the
additional suspension is to begin that the suspension is necessary to the national
interests of the United States and will expedite a transition to democracy in Cuba.
22 U.S.C. §§ 6085(a)-(c)(2). Thus, Title III specifies an effective date of August 1, 1996, and
authorizes the president to suspend either the effective date of Title III or, after Title III takes
effect, the right bring an action under Title III. Id.
On March 12, 1996, President Clinton signed the LIBERTAD Act into law. See Cuban
Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, Pub. L. No. 104-114, §§ 301-306,
available at https://www.congress.gov/104/plaws/publ114/PLAW-104publ114.pdf; Statement on
Signing the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, 1 Pub. Papers
433, 433 (Mar. 12, 1996), available at https://www.govinfo.gov/content/pkg/PPP-1996book1/pdf/PPP-1996-book1-doc-pg433.pdf (“Today I have signed into law [the LIBERTAD Act,
which] . . . . creates a cause of action enabling U.S. nationals to sue those who expropriate or
‘traffic’ in expropriated properties in Cuba . . . .”). Further, on July 16, 1996, President Clinton
issued a statement, explaining in relevant part that:

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Title III allows U.S. nationals to sue foreign companies that profit from
American-owned property confiscated by the Cuban regime. The law also provides
me with the authority to suspend the date on which Title III enters into force, or the
date on which U.S. nationals can bring suit, if I determine that suspension is
necessary to the national interest and will expedite a transition to democracy in
Cuba. I have decided to use the authority provided by Congress to maximize Title
III’s effectiveness in encouraging our allies to work with us to promote democracy
in Cuba.
I will allow Title III to come into force. As a result, all companies doing
business in Cuba are hereby on notice that by trafficking in expropriated American
property, they face the prospect of lawsuits and significant liability in the United
States. This will serve as a deterrent to such trafficking, one of the central goals of
the LIBERTAD Act.
At the same time, I am suspending the right to file suit for 6 months . . . .
. . . Our allies and friends will have a strong incentive to make real progress
because, with Title III in effect, liability will be established irreversibly during the
suspension period and suits could be brought immediately when the suspension is
lifted. And for that very same reason, foreign companies will have a strong
incentive to immediately cease trafficking in expropriated property, the only sure
way to avoid future lawsuits.
....
Today’s action is the best way to achieve the bipartisan objectives we all
share: to isolate the Cuban Government and to bring strong international pressure
to bear on Cuba’s leaders, while holding out the very real prospect of fully
implementing Title III in the event it becomes necessary.
Statement on Action on Title III of the Cuban Liberty and Democratic Solidarity (LIBERTAD)
Act

of

1995,

2

Pub.

Papers

1136,

1137-38

(July

16,

1996),

available

at

https://www.govinfo.gov/content/pkg/PPP-1996-book2/pdf/PPP-1996-book2-doc-pg1136.pdf
(emphasis added) (“July 16, 1996, Statement”); see also Statement on Efforts To Bring Democracy
to

Cuba,

2

Pub.

Papers

1299,

1299

(Aug.

16,

1996),

available

at

https://www.govinfo.gov/content/pkg/PPP-1996-book2/pdf/PPP-1996-book2-doc-pg1299.pdf
(“On July 16, I decided to allow title III of the Cuban Liberty and Democratic Solidarity Act
(LIBERTAD) to enter into force, putting companies doing business in Cuba on notice that by
trafficking in expropriated properties they face the prospect of lawsuits in the United States. I also
suspended the right to file suit for 6 months to allow us time to forge a common approach with our

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allies and trading partners to accelerate democratic transition in Cuba.” (emphasis added))
(“August 16, 1996, Statement”).
As these statements make clear, President Clinton explicitly and repeatedly indicated his
intention to allow Title III to take effect, but to nevertheless suspend the right to bring an action
under Title III with respect to confiscated property, as set forth in 22 U.S.C. § 6085(c). This
suspension decision is entirely separate from the authority granted pursuant to § 6085(b) to
suspend the effective date of Title III. Accordingly, pursuant to § 6085(a), Title III took effect on
August 1, 1996. As a result, once in effect, Title III established that anyone who, “after the end of
the 3-month period beginning on [August 1, 1996,]” traffics in confiscated property “shall be liable
to any United States national who owns the claim to such property for money damages . . . .” 22
U.S.C. § 6082(a)(1)(A) (emphasis added).
MSC argues that Title III is retroactive because the cause of action contained within Title
III lay dormant, having no effect and carrying no legal consequences, until the suspension was
lifted in May 2019. Thus, MSC contends that applying Title III to its pre-May 2019 operations in
Cuba serves to attach new legal consequences to its conduct that did not previously exist at the
time MSC engaged in this conduct. MSC also argues that it began its operations in Cuba based
upon the federal government’s explicit encouragement, and it relied on this encouragement and
the continuous suspension of Title III in conducting its operations in Cuba. As such, MSC argues
that it lacked adequate notice of the legal consequences of such conduct because Title III was
consistently suspended for over twenty years.
“To fall within the ex post facto prohibition, a law must be retrospective—that is, ‘it must
apply to events occurring before its enactment’—and it ‘must disadvantage the offender affected
by it,’ by altering the definition of criminal conduct or increasing the punishment for the crime[.]”

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Lynce, 519 U.S. at 441 (quoting Weaver, 450 U.S. at 29) (citing Collins v. Youngblood, 497 U.S.
37, 50 (1990)); see also United States v. Rosello, 737 F. App’x 907, 909 (11th Cir. 2018) (“Even
if a ‘change in the law obviously ha[s] a detrimental impact upon the defendant, . . . the law [is]
not ex post facto . . . [unless the law] ma[kes] criminal a theretofore innocent act, . . . aggravate[s]
a crime previously committed, . . . provide[s] greater punishment, []or change[s] the proof
necessary to convict.’” (quoting Dobbert, 432 U.S. at 293)).
An “ex post facto inquiry . . . [focuses] not on whether a legislative change produces
some ambiguous sort of ‘disadvantage,’ . . . but on whether any such change alters
the definition of criminal conduct or increases the penalty by which a crime is
punishable.” [Ca. Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n.3 (1995)]. The
Clause does not “forbid[] any legislative change that has any conceivable risk of
affecting a [litigant’s] punishment.” Id. at 508. Instead, the Clause prohibits only
those retroactively applied laws that “produce[] a sufficient risk of increasing the
measure of punishment attached to the covered crimes,” id. at 509, or affects “the
quantum of punishment” imposed, Dobbert v. Fla., 432 U.S. 282, 294 (1977). That
prohibition “operates not to protect an individual’s right to less punishment, but
rather as a means of assuring that an individual will receive fair warning of criminal
statutes and the punishments they carry.” Hock v. Singletary, 41 F.3d 1470, 1472
(11th Cir. 1995) (citing Dobbert, 432 U.S. at 298, and Weaver v. Graham, 450 U.S.
24, 28-30 (1981)).
Rosello, 737 F. App’x at 908; see also Weaver, 450 U.S. at 30 (explaining that the central concerns
of the Ex Post Facto Clause are “the lack of fair notice and governmental restraint when the
legislature increases punishment beyond what was prescribed when the crime was consummated”).
MSC’s arguments regarding the retroactivity of Title III are misplaced and unsupported by
law. Specifically, MSC’s arguments that the application of Title III here would be retroactive are
seemingly premised upon the incorrect contention that Title III was not in effect during its
operation in Cuba, and that lifting the suspension in May 2019 caused Title III to take effect. This
reading of Title III ignores the explicit language of the statutory text and the distinct provisions
authorizing the president to either suspend the effective date of Title III or to suspend the right to

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bring an action under Title III, despite Title III’s other provisions remaining in effect. See 22
U.S.C. §§ 6085(b), (c).
As noted above, Title III took effect on August 1, 1996, see id. § 6085(a), and liability for
trafficking thus attached to conduct on confiscated property beginning on November 1, 1996 (i.e.,
three months after Title III’s effective date), see § 6082(a)(1)(A). Likewise, President Clinton’s
statements regarding the actions taken pursuant to Title III of the Act further buttress the notion
that liability for trafficking in confiscated property under Title III could be imposed for conduct
occurring on or after November 1, 1996.6 Thus, contrary to its position in the Motion, MSC’s
alleged conduct on the Subject Property was not lawful prior to the suspension being lifted in May
2019. Instead, liability for trafficking under Title III attached beginning on November 1, 1996, and
the consistent suspension of the right to bring an action under Title III did not affect this liability.
In other words, MSC’s alleged conduct in Cuba occurred after the enactment of Title III,7 and the

See July 16, 1996, Statement, 2 Pub. Papers 1137 (“[W]ith Title III in effect, liability will be established
irreversibly during the suspension period and suits could be brought immediately when the suspension is
lifted. And for that very same reason, foreign companies will have a strong incentive to immediately cease
trafficking in expropriated property, the only sure way to avoid future lawsuits.” (emphasis added)); see
also id. (“[F]or countries and foreign companies that take advantage of expropriated property the choice is
clear: They can cease profiting from such property, they can join our efforts to promote a transition to
democracy in Cuba, or they can face the risk of full implementation of Title III.”); August 16, 1996,
Statement, 2 Pub. Papers 1299 (“On July 16, I decided to allow title III of the Cuban Liberty and Democratic
Solidarity Act (LIBERTAD) to enter into force, putting companies doing business in Cuba on notice that
by trafficking in expropriated properties they face the prospect of lawsuits in the United States. I also
suspended the right to file suit for 6 months to allow us time to forge a common approach with our allies
and trading partners to accelerate democratic transition in Cuba.” (emphasis added)).
6

7

Moreover, that MSC began its operations in Cuba at the encouragement and licensure of the federal
government is of no moment. During all times relevant, including the period during which the government
encouraged increased relations with Cuba under the Obama Administration, the LIBERTAD Act expressly
made trafficking in confiscated property unlawful and imposed liability for such trafficking. Thus, the fact
that MSC began conducting business in Cuba pursuant to this encouragement is not relevant to the Court’s
analysis. MSC’s decision to operate in Cuba by trafficking in the Subject Property, which was previously
confiscated by the Cuban Government, was independent from the encouragement it received from the
federal government. Indeed, MSC could, in theory, have operated in Cuba at the encouragement of the
government, while nonetheless avoiding liability under Title III by not conducting its operations on property
that was confiscated by the Cuban Government or by obtaining Plaintiff’s consent.

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penalty for liability has remained unchanged since Title III was enacted, thus putting traffickers
on notice of their potential liability under § 6082(a)(1)(A) since Title III took effect in 1996. See
Lynce, 519 U.S. at 441; see also Rosello, 737 F. App’x at 909. As such, the imposition of liability
under Title III is not retroactive.
The ex post facto prohibition “operates not to protect an individual’s right to less
punishment, but rather as a means of assuring that an individual will receive fair warning of
criminal statutes and the punishments they carry.” Rosello, 737 F. App’x at 908 (quoting Hock, 41
F.3d at 1472). Because the Court concludes that the ex post facto concerns regarding fair notice
and governmental restraint are satisfied here, MSC’s Motion is denied on this ground.
C. Due Process Clause – Retroactivity and Fair Notice
MSC further argues that it lacked fair notice, as required under the Due Process Clause, of
the possibility of Title III’s retroactive application to its conduct in Cuba that occurred during the
suspension period, or to its conduct that was licensed and encouraged by the federal government.
As an initial matter, the Court notes that this due process argument is founded upon MSC’s
assumption that it is correct regarding the retroactive application of Title III to its conduct in
Cuba—a theory the Court has already rejected. In particular, the Court has explained that, although
the right to bring an action under Title III was suspended for over twenty years since the date of
its enactment, neither the effective date of Title III nor the provision imposing liability for
trafficking were suspended. Instead, Title III’s suspension was solely limited to the timing of when
claimants could file suit against traffickers in their confiscated property. President Clinton
explained that his intent in allowing Title III to take effect, while also suspending the right to bring
an action under Title III, was to incentivize foreign companies to immediately cease trafficking in
confiscated property, or face liability under Title III once the suspension was lifted, and to promote

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the United States’ foreign policy goals relating to Cuba. Throughout the suspension period,
however, and upon the removal of the suspension, Title III’s civil remedy that created liability for
trafficking in confiscated property remained intact and in force. Thus, as MSC’s due process
arguments relate to the retroactive application of Title III to its conduct in Cuba, these arguments
are without merit.
Moreover, with regard to MSC’s contention it lacked fair notice that liability under Title
III could be imposed for its conduct in Cuba due to the government’s encouragement of relations
with Cuba and Title III’s consistent history of suspensions, the Court again remains unpersuaded.
Neither the government’s encouragement and licensure nor the history of suspending Title III is
sufficient to establish a lack of fair notice under the Due Process Clause. “Generally, a legislature
need do nothing more than enact and publish the law, and afford the citizenry a reasonable
opportunity to familiarize itself with its terms and to comply.” Texaco, Inc. v. Short, 454 U.S. 516,
532 (1982). “All persons are charged with knowledge of the provisions of statutes and must take
note of the procedure adopted by them and when that procedure is not unreasonable or arbitrary
there are no constitutional limitations relieving them from conforming to it.” N. Laramie Land Co.
v. Hoffman, 268 U.S. 276, 283 (1925); see also Texaco, Inc., 454 U.S. at 532 n.25.
In altering substantive rights through enactment of rules of general applicability, a
legislature generally provides constitutionally adequate process simply by enacting
the statute, publishing it, and, to the extent the statute regulates private conduct,
affording those within the statute’s reach a reasonable opportunity both to
familiarize themselves with the general requirements imposed and to comply with
those requirements.
United States v. Locke, 471 U.S. 84, 108 (1985) (citing Texaco, Inc., 454 U.S. at 532; Anderson
Nat’l Bank v. Luckett, 321 U.S. 233, 243 (1944); N. Laramie Land Co., 268 U.S. at 283).
Despite the absence of any lawsuits being filed pursuant to Title III since its enactment,
MSC was on notice of Title III’s existence from the time it became law in 1996, and it had an

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obligation to familiarize itself with the mandates of Title III, especially once it began operating in
Cuba. Locke, 471 U.S. at 108; Texaco, Inc., 454 U.S. at 532; N. Laramie Land Co., 268 U.S. at
283. Moreover, the government’s encouragement to travel to Cuba and to increase commercial
relations with Cuba does not in any way absolve MSC of its obligations to also comply with federal
law—namely, by not trafficking in confiscated property without the consent of a Title III claimant.
Thus, MSC has failed to meet its burden to demonstrate that the application of Title III to its
conduct in Cuba constitutes a due process violation. See Pension Ben. Guar. Corp. v. R.A. Gray &
Co., 467 U.S. 717, 729 (1984) (“It is by now well established that legislative Acts adjusting the
burdens and benefits of economic life come . . . with a presumption of constitutionality, and that
the burden is on one complaining of a due process violation to establish that the legislature has
acted in an arbitrary and irrational way.” (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S.
1, 15 (1976))). Accordingly, MSC’s Motion is denied as to its first due process claim.
D. Due Process Clause – Grossly Excessive Penalty
MSC also argues that Title III’s oppressive and excessive penalty violates due process, and
it clarifies in its Reply that this challenge is both a facial and as-applied challenge to the
constitutionality of Title III’s penalty. In its Response, Havana Docks argues that an as-applied
challenge to the excessiveness of a penalty is not ripe for this Court’s review until after the penalty
has been imposed. Moreover, with regard to the facial excessiveness challenge, Plaintiff contends,
in part, that MSC cannot establish that the penalty for liability under Title III would be excessive
in every possible application, as required to sustain a facial excessiveness challenge.
First, regarding the as-applied excessiveness challenge, the Court agrees with Havana
Docks—Eleventh Circuit precedent dictates that such a challenge is not ripe at this juncture.
Ripeness doctrine “originate[s] from the Constitution’s Article III requirement that
the jurisdiction of the federal courts be limited to actual cases and controversies.”

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[Elend v. Basham, 471 F.3d 1199, 1204-05 (11th Cir. 2006)]. For a court to have
jurisdiction, the claim must be “sufficiently mature, and the issues sufficiently
defined and concrete, to permit effective decisionmaking by the court.” Cheffer v.
Reno, 55 F.3d 1517, 1524 (11th Cir. 1995). “The ripeness doctrine protects federal
courts from engaging in speculation or wasting their resources through the review
of potential or abstract disputes.” Digital Props., Inc. v. City of Plantation, 121 F.3d
586, 589 (11th Cir. 1997). “A claim is not ripe for adjudication if it rests upon
contingent future events that may not occur as anticipated, or indeed may not occur
at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks
omitted).
Because the question of ripeness depends on the timing of the adjudication
of a particular issue, see Atlanta Gas Light Co. v. Fed. Energy Regulatory Comm’n,
140 F.3d 1392, 1403-04 (11th Cir. 1998), it applies differently to facial and asapplied challenges. A facial challenge asserts that a law “always operates
unconstitutionally,” Black’s Law Dictionary 223 (7th ed. 1999) (emphasis added);
therefore, a facial challenge will succeed only if the statute “could never be applied
in a constitutional manner.” DA Mortgage, Inc. v. City of Miami Beach, 486 F.3d
1254, 1262 (11th Cir. 2007). In the context of a facial challenge, a purely legal
claim is presumptively ripe for judicial review because it does not require a
developed factual record. See Nat’l Treasury Employees Union v. Chertoff, 452
F.3d 839, 854-55 (D.C. Cir. 2006); Solantic, LLC v. City of Neptune Beach, 410
F.3d 1250, 1274 (11th Cir. 2005); Roe No. 2 v. Ogden, 253 F.3d 1225, 1232 (10th
Cir. 2001). An as-applied challenge, by contrast, addresses whether “a statute is
unconstitutional on the facts of a particular case or to a particular party.” Black’s
Law Dictionary at 223. Because such a challenge asserts that a statute cannot be
constitutionally applied in particular circumstances, it necessarily requires the
development of a factual record for the court to consider. See Siegel v. LePore, 234
F.3d 1163, 1171 (11th Cir. 2000).
Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009).
In addressing an as-applied due process challenge to the excessiveness of a statutory
penalty in Harris, the Eleventh Circuit explained that “[w]hen a damages award is punitive in
nature, it is subject to constitutional excessiveness review.” Id. at 1309 (citing Johansen v.
Combustion Eng’g, Inc., 170 F.3d 1320, 1334 (11th Cir. 1999)). These as-applied excessiveness
challenges, however, are typically reviewed “after a jury has delivered a damages award,” because
a court’s review otherwise requires a number of assumptions regarding the resolution of directly
disputed issues. Id. (citing State Farm Mut. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (finding
that the jury’s punitive damages award of $145 million was unconstitutionally excessive); Action

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Marine, Inc. v. Cont’l Carbon Inc., 481 F.3d 1302 (11th Cir. 2007) (upholding a jury’s punitive
damages award of $17,500,000); Kemp v. Am. Tel. & Tel. Co., 393 F.3d 1354 (11th Cir. 2004)
(reducing a jury’s punitive damages award of $1,000,000 to $250,000)).
In this case, it is apparent that any as-applied excessiveness challenge would require this
Court to make numerous assumptions about factual issues that are still premature and in dispute
(e.g., assuming that MSC’s liability is proven at trial, assuming that all of MSC’s defenses fail,
and assuming the amount of damages awarded). As such, MSC’s as-applied excessiveness
challenge, like the one at issue in Harris, is not ripe for review at this stage. Id. at 1310.
MSC’s facial excessiveness challenge also fails. Although the Motion contends that the
penalty Title III generally imposes upon defendants for trafficking is arbitrary and excessive in
violation of the Due Process Clause, MSC makes no attempt to address how Title III’s statutory
penalty always yields unconstitutionally excessive results, as required for a facial challenge.
Rather, MSC broadly states that “Title III imposes penalties on defendants that are so disconnected
from any actual damages they might cause to plaintiffs as to be irrational.” ECF No. [69] at 19.
Yet, “it is conceivable that in the future a party with actual harm that is difficult to compute will
bring a case seeking statutory damages. In such a case, the actual harm might be very close to the
statutory damages.” Harris, 564 F.3d at 1313. Indeed, it is entirely plausible that a claimant under
Title III might seek to recover statutory damages in an amount close to the amount of profits
generated from a defendant’s trafficking.8 Further, it is well settled that “[t]his mere possibility of

8

Moreover, the Supreme Court has explained that
the power of the state to impose fines and penalties for a violation of its statutory
requirements is coeval with government; and the mode in which they shall be enforced,
whether at the suit of a private party, or at the suit of the public, and what disposition shall
be made of the amounts collected, are merely matters of legislative discretion. Nor does
giving the penalty to the aggrieved [party] require that it be confined or proportioned to his
loss or damages; for, as it is imposed as a punishment for the violation of a public law, the

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a constitutional application is enough to defeat a facial challenge to the statute.” Id. at 1313 (citing
High Ol’ Times, Inc. v. Busbee, 673 F.2d 1225, 1228 (11th Cir. 1982)). As such, MSC’s facial and
as-applied constitutional excessiveness challenges are both denied.
E. Failure to State a Claim
Finally, MSC briefly argues that Havana Docks has failed to sufficiently allege that it
trafficked in all of the property interests memorialized in the Certified Claim—i.e., the securities,
accounts receivable, debts of the Cuban Government, railroad tracks, office furniture, and the
indemnity right—rather than just in the concession itself. Plaintiff, on the other hand, notes that
liability under Title III attaches for trafficking in confiscated property, not in specific property
interests.
The Court is unpersuaded by MSC’s final argument here because this argument seemingly
ignores the explicit language of the LIBERTAD Act, which defines “traffics” as follows:
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,

Legislature may adjust its amount to the public wrong rather than the private injury, just as
if it were going to the state.
St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66 (1919) (citations and internal quotation marks
omitted).

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without the authorization of any United States national who holds a claim to the
property.
22 U.S.C. § 6023(13)(A) (emphasis added).
Moreover, as discussed above, Plaintiff has not only alleged MSC’s purported trafficking
in the Subject Property, see ECF No. [56] ¶¶ 21-27, but it has also explicitly delineated the various
property interests encompassed in the Certified Claim, see id. ¶¶ 12-17 (describing the various
confiscated property interests in the Subject Property), all of which constitute “confiscated
property” under the Act. At this stage in the litigation, these allegations are sufficient to “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550
U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Erickson v. Pardus, 551
U.S. 89, 93 (2007). Therefore, MSC’s Motion is denied as to this claim.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. MSC’s Motion to Dismiss, ECF No. [69], is DENIED.
2. MSC is ordered to file its Answer to the Amended Complaint by no later than
September 18, 2020.
3. Plaintiff’s Motion for Leave to File Response to Notices of Supplemental Authority,
ECF No. [86], is DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida on September 7, 2020.

____________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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