A Different Judge, A Second Defeat For Carnival Corporation; Painful Process Of Discovery Begins; Stream Of Lawsuits May Become A River

Second Judge Refuses To Dismiss Libertad Lawsuit Against Carnival Corporation
Stream Of Lawsuits May Become A River
Three Other Cruise Lines Will Likely Lose Any Motion To Dismiss
The Process Of Discovery Could Become Ugly And Lead To Settlements
Will Settlement Discussions Commence?
Definition Of “Authorized Travel” And “Lawful Travel” Is Key To Liability
If Travel Defense Is Not Valid, Cruise Lines May Be Liable
Did President Obama Create 13th Travel Category? Was It Illegal?
Are Airlines Next Defendants?
What Advice Were Companies Given By Their Legal Counsel- Will Be Issue In Lawsuits

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO: 1:19-cv-21724-BB
Havana Docks Corporation v. Carnival Corporation

Excerpts From 28 August 2019 9-Page Ruling By Judge Beth Bloom: 

“Based on the language of the Libertad Act, the Court agrees with the Plaintiff that the “lawful travel exception” is an affirmative defense to trafficking. Affirmative defenses generally admit the matters in a complaint but nevertheless assert facts that would defeat recovery. “Plaintiffs are not required to negate an affirmative defense in their complaint.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). Therefore, this exception must be established by Carnival and Plaintiff was not required to negate this exception in its Complaint. While it may very well be that Carnival’s conduct falls within the scope of the exception, such argument is not appropriate at this stage of the litigation.” 

“The Court further rejects the notion that Plaintiff was required “to go a step further” beyond the elements articulated in the statute and state that the alleged trafficking was not “incident to” or “necessary for” lawful travel. Plaintiff alleges that the trafficking that occurred was “as defined in 22 U.S.C. § 6023(13)(A).” ECF No. [1], at ¶ 14. To the extent the Defendant disagrees with this allegation, it may deny it, and assert an appropriate affirmative defense.”  

“Carnival also argues that even if Plaintiff has attempted to adequately plead trafficking, such attempt would fail because Carnival’s use of the Subject Property was “incident to” or “necessary for” lawful travel. ECF No. [17], at 5-8. However, this argument is also inappropriate at this stage, as it calls into question a direct issue of fact in dispute. Such question is not suitable for disposition upon a motion to dismiss. See Int’l Village Ass’n, Inc. v. AmTrust N. Am., Inc., 2015 WL 3772443, at *4 (S.D. Fla. June 17, 2015) (“[Defendant’s] contrary assertion... raises an issue of fact inappropriate for resolution on a motion to dismiss.”).” 

“First, the plain language of the Libertad Act states that “any person ... that traffics in property which was confiscated by the Cuban Government ... shall be liable to any United States national who owns the claim to such property.” 22 U.S.C. § 6082(A) (emphasis added). Thus, the Libertad Act does not expressly make any distinction whether such trafficking needs to occur while a party holds a property interest in the property at issue. To this extent, the Court agrees with the Plaintiff that the Defendant incorrectly conflates a claim to a property and a property interest. Accordingly, the Court finds that the Complaint sufficiently alleges that the Plaintiff owns a claim to the Subject Property.” 

LINK TO COMPLETE ORDER  

LINK TO COURT DOCUMENTS 

LINK To Judge King Opinion (26 August 2019)