China Companies Seek Dismissal Of Libertad Act Lawsuit: Court Lacks Personal Jurisdiction
/NORTH AMERICAN SUGAR INDUSTRIES INC., V. XINJIANG GOLDWIND SCIENCE & TECHNOLOGY CO., LTD., GOLDWIND INTERNATIONAL HOLDINGS (HK) LTD., DSV AIR & SEA INC., BBC CHARTERING USA, LLC, and BBC CHARTERING SINGAPORE PTE LTD., [1:20-cv-22471; Southern Florida District].
Gibson, Dunn & Crutcher (plaintiff)
Mandel & Mandel (plaintiff
Morgan, Lewis & Bochius (defendant)
Akerman (defendant)
Hogan Lovells LLP (defendant)
LINK: BBS Chartering Defendant’s Motion To Dismiss The Complaint For Lack Of Personal Jurisdiction And Memorandum Of Law (31 August 2020)
LINK: Libertad Act Lawsuit Filing Statistics
Excerpts From 24-Page Filing:
Plaintiff alleges that the BBC Defendants, as well as the other defendants, “trafficked” in “Confiscated Property” – that is, property owned by Plaintiff at the time the Cuban government confiscated it in 1959 and 1960 – in violation of the Cuban Liberty and Democratic Solidarity Act (LIBERTAD) Act, 22 U.S.C. § 6021 et seq. (the “Act”). The U.S. Foreign Claims Settlement Commission (“FCSC”) certified all of the Confiscated Property (consisting of a large variety of assets including farmland, livestock, crops, factories, equipment, railroads, etc.) as having a value of over $97 million as of 1959-1960 (Compl. Ex. 1).
Plaintiff alleges that defendants trafficked in the Confiscated Property by their alleged involvement in the shipment on two vessels of equipment from China to Cuba (with a stop in Florida) and its unloading at a Cuban port known as Puerto Carupano, whose value (including “Docks, Warehouses and other installations”) was certified by the FCSC as having a value of $2,228,000 (Compl. Ex. 1 at 14).
BBC USA is incorporated in and has its principal place of business in Texas (Compl. ¶ 23; Petersen Decl. ¶ 4). BBC USA does not have an office or any employees in Florida (Petersen Decl. ¶ 5). It is not registered to do business in Florida.
Plaintiff makes one other allegation in an effort to “rope in” BBC USA. It alleges that the BBC Moonstone carried equipment – in addition to and entirely unrelated to the equipment delivered to Cuba – that was loaded on the vessel before the Cuba-bound equipment was loaded in Tianjin, China; that remained on the vessel when the Cuba-bound equipment was unloaded at Puerto Carupano; and that ultimately was delivered at Port Arthur, Texas “to BBC USA on behalf of [its] parent company BBC Chartering [BBC Logistic]” (Compl. ¶ 140). That unrelated equipment was not unloaded in Cuba and made no use of the Port there.
Finally, Plaintiff repeatedly makes the incendiary allegation – evidently seeking to tie the BBC Defendants (and the other defendants) to these two voyages and Florida – that all defendants, including the BBC Defendants, deliberately hid and conspired to hide from U.S. authorities that Puerto Carupano in Cuba was the ultimate destination of the cargoes (e.g., Compl. ¶¶ 6, 150, 182, 241).
BBC Singapore is incorporated in and has its principal place of business in Singapore (Compl. ¶ 23; Schoennmann Decl. ¶ 4). It, like BBC USA, does not have an office or any employees in Florida (id. ¶ 5), and is not registered to do business in Florida (see page 2 n.1 above).
A court’s analysis of whether it may exercise personal jurisdiction over a nonresident defendant under Florida law involves two steps. First, the court must determine whether its exercise of personal jurisdiction is appropriate under Florida’s long-arm statute, § 48.193 Fla. Stat.; and second, if the long-arm statute is satisfied, the court must determine whether the exercise of personal jurisdiction would violate the Due Process Clause. United Techs., 556 F.3d at 1274; see also Peruyero v. Airbus S.A.S., 83 F. Supp. 3d 1283, 1290 (S.D. Fla. 2014) (Cooke, J.) (same) (applying § 47.16 Fla. Stat., the predecessor of § 48.193 Fla. Stat.).
The Court may not exercise general personal jurisdiction over either BBC Defendant because neither is incorporated or has it principal place of business in Florida. The complaint does not allege, nor can it allege, any exceptional circumstances in this case for departing from well-established Supreme Court precedent that, barring exceptional circumstances, general jurisdiction over a corporation exists only where the corporation is incorporated or has its principal place of business.
