(Pix Credit Here: Carnival Cruises Faces More Lawsuits over Cuba Trips)
It has been only several months since the Trump Administration announced that it would no longer suspend the U.S. law provisions that allow lawsuits in U.S. courts against foreign
companies in Cuba that use properties confiscated from
Cuban Americans and other U.S. citizens after 1959 (discussed here: The
Pivot Toward the Caribbean: Announcement of Permission to Sue Anyone
Using American Property Confiscated by Cuba and the Larger Trump
Administration Strategy Coordinating Policy Against Cuba, Nicaragua, and
Venezuela; official Cuban reaction here: La Revolución Cubana prevalecerá firme ante la escalada agresiva de los Estados Unidos [and my English translation HERE: "The Cuban Revolution will prevail against the aggressive escalation of the United States"]).
The action was possible pursuant to the discretion given the President under Article III of the 1996 Cuban Liberty and Democratic Solidarity Act (also known as Libertad Act). Under Title III of that act, United States
citizens who had their property confiscated by the Castro regime were
given the right to file suit against those who traffic in such
properties (See Libertad Act §§ 301-306). Section 302(a)(1) provides in relevant part:
Except as otherwise provided in this section, any person that, after the end of the 3-month period beginning on the effective date of this title, traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages
But nothing involving Cuba, or Cuban related claims has ever been either easy or straightforward. Moreover in the process of racing toward remedy, there was a chance that the U.S. legal system, might be exposed to collateral damage--or more tactfully put, that its rules and systems of process might undergo dynamic change in the process of vindication claims (at least to the extent that such dynamic transformation is advanced by litigants and embraced by courts).
One did not have to wait long for this process to begin. If defendants are to be believed, the first target apparently is the now ancient notion of corporate autonomy. Consider the opening paragraph of Garcia-Bebngochea v. Carnival Cruise Lines, Case No. 19-cv-21725-KING (S.D. FL, entered into docket 5 Sept. 2019).
This is a textbook case for Section 1292(b) certification. Plaintiff brought among the first ever suits under the Helms-Burton Act. 22 U.S.C. § 6021 et seq. Plaintiff’s Complaint required the Court to disregard normal principles of corporate law and hold that under Helms-Burton a plaintiff can make a claim not only for his or her own assets but also for the assets of a foreign corporation for which he or she was a shareholder. The Court’s order finding that Bengochea can make a claim for the subject property, despite the undisputed fact that this property was owned by La Maritima, S.A., a Cuban entity, was not only unprecedented as to corporate law, but it was also the first ever direct judicial treatment of Helms-Burton. Carnival respectfully requests this Court amend its August 26, 2019 Order to certify this discrete issue for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Allowing for an interlocutory appeal here would allow the Court of Appeals to answer this threshold legal question at the outset and potentially avoid the expenditure of further resources by the Court and the parties. Accordingly, certification is proper.
The Motion for Certification for Interlocutory Appeal follows. It should
be noted that the results of this action might have significance far
beyond the small world of resolving ancient Cuban claims. In this case,
for example, the willingness of courts to disregard corporate autonomy
could, if applied in the context of litigation against parent companies
for violation of supplier codes of conduct, significantly expand the
scope of liability for apex companies in global production chains. It is
too early to tell, of course ("Here, the controlling question of law is
whether Helms-Burton, contrary to normal principles of corporate law,
gives a plaintiff a “claim” to property when the plaintiff’s
relationship to that property is that he or she owned shares (or
traces ownership of the claim to someone who owned shares) in a
corporation that owned the property, and that corporation is a Cuban
corporation." Brief at pg. 3). But the assault on the protections of corporate legal
autonomy will be significant all the same. Stay tuned.
Case 1:19-cv-21725-JLK Document 42 Entered on FLSD Docket 09/05/2019 Page 10 of 12
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION
CASE NO.: 19-cv-21725-KING
JAVIER GARCIA-BENGOCHEA,
Plaintiff,
v.
CARNIVAL CORPORATION d/b/a/
CARNIVAL
CRUISE LINE, a foreign
corporation,
Defendant.
/
CARNIVAL CORPORATION’S MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL
JONES WALKER LLP
George J. Fowler, III (Pro Hac Vice)
Luis Llamas
(Florida Bar No. 89822) 201 St.
Charles Ave.
New Orleans, LA 70170 Telephone:
(504) 582-8752 gfowler@joneswalker.com llamas@joneswalker.com
BOIES SCHILLER FLEXNER LLP
Stuart H. Singer
(Florida Bar No. 377325)
Evan Ezray
(Florida Bar No. 1008228)
401 East Las Olas Boulevard,
Suite 1200 Fort Lauderdale, Florida 33301 Telephone: (954) 356-0011 ssinger@bsfllp.com
INTRODUCTION
This is a textbook case for Section 1292(b)
certification. Plaintiff brought among the first ever suits under the Helms-Burton Act. 22 U.S.C. § 6021 et seq. Plaintiff’s Complaint required the Court
to disregard normal
principles of corporate law and hold that under
Helms-Burton a plaintiff can make a claim not only for his or her own assets
but also for the assets
of a foreign corporation
for which he or she was a shareholder. The Court’s order finding that Bengochea can make a claim
for the subject property, despite
the undisputed fact that this property was owned by La Maritima, S.A., a Cuban entity,
was not only unprecedented as to corporate
law, but it was also the first
ever direct judicial treatment of Helms-Burton. Carnival respectfully
requests this Court amend its August 26, 2019 Order to certify this discrete
issue for interlocutory appeal pursuant to 28
U.S.C.
§ 1292(b). Allowing for an interlocutory appeal here would allow the
Court of Appeals to answer this threshold legal
question at the outset and potentially avoid the expenditure of further resources by the Court and the parties.
Accordingly, certification is proper.
BACKGROUND
Plaintiff alleged that he was the “rightful
owner” to certain
waterfront property in Santiago,
Cuba. (Compl. ¶ 6.) Plaintiff pleaded that a portion of his “ownership interest
. . . ha[d] been certified by the Foreign Claims Settlement Commission,” and attached a copy of that certification as Exhibit A to his
Complaint. (Compl. ¶ 10 & Ex. A.) The attached claim certification
clarified Plaintiff’s ownership interest. In evaluating and certifying the
attached claim (which was owned at the time by Albert J. Parreno),
the Foreign Claims
Settlement Commission (“FCSC”)
found that Mr. Parreno was a
shareholder of a Cuban Company—La Maritima, S.A.—and that La Maritima was the
actual owner of the waterfront property. (Compl. Ex. A (ECF No. 1-1) at 3).)
The FCSC recognized Mr. Parreno’s
ability to recover
the value of his stock in La Maritima, S.A., and
specifically
noted that La Maritima S.A., did not have standing to make a claim due to its
Cuban citizenship, citing to longstanding FCSC precedent. (Compl. Ex. A (ECF
No. 1-1) at 4.)
On May 30, 2019, Carnival filed a Motion to Dismiss the
Complaint. Carnival argued that
Plaintiff could not state a claim based on allegations that Carnival used the
waterfront property in Santiago because La Maritima S.A., not the Plaintiff,
owned any claim related to the confiscation of its corporate property, that
shareholders do not have the ability to assert a claim for loss of corporate property,
and that La Maritima S.A., is a Cuban corporation, and therefore, is not eligible to bring a claim under the Act.
The Court denied Carnival’s motion to dismiss. In its Order, the Court ruled that Bengochea
could assert a claim to the Santiago
docks even though
the docks were owned by a Cuban corporation at the time of confiscation and Bengochea’s only connection to the
docks was through his allegedly inherited share ownership. (ECF No. 41, pp. 10-13.)
ARGUMENT
Section 1292(b) is designed to facilitate interlocutory
appeals when immediate “appeal may avoid protracted and expensive litigation .
. . [and] where a question which would be dispositive of the litigation is
raised and there is serious doubt as to how it should be decided.” McFarlin v. Conseco Servs., LLC, 381
F.3d 1251, 1256 (11th Cir. 2004) (quoting 1958 U.S.C.C.A.N. 5255, 5260-61).
Accordingly, Section 1292(b) allows a district court to certify an issue for
interlocutory appeal when: (1) the challenged ruling involves controlling
questions of law, (2) there is substantial ground for difference of opinion on
the ruling, and (3) an immediate appeal may materially advance the ultimate
termination of the litigation. 28 U.S.C. § 1292(b). Although certification of
an order under § 1292(b) is discretionary, it is “the duty of the district
court . . . to allow an immediate appeal to be taken when the statutory
criteria [in § 1292(b)] are met.” Ahrenholz
v. Bd. of Tr. of the Univ. of Ill., 219 F.3d 674, 677 (7th Cir. 2000).
Here, all three factors support certification.
I. THE CHALLENGED RULING INVOLVES A CONTROLLING QUESTION OF LAW
“A ‘controlling question
of law’ arises where the court of appeals can rule on a controlling question of pure law without
having to search deep into the record in order to discern the facts.” Nat’l Union Fire Ins. Co. of Pittsburgh v.
Tyco Integrated Sec., LLC, 13-CIV-80371, 2015 WL 11251735, at *2 (S.D. Fla.
July 8, 2015). For example, a “controlling question of law” often involves
determining “the meaning of a statutory or constitutional provision,
regulation, or common law doctrine.” McFarlin, 381 F.3d at 1258 (quoting Ahrenholz, 219 F.3d at 676).
The Eleventh Circuit has explained that a controlling
question of law may be established by showing the challenged ruling is
“directly associated with the disposition of at least a claim, if not the entire case itself.” Harris v. Luckey, 918 F.2d 888, 892 (11th Cir. 1990);
see also Sokaogon Gaming
Enter. Corp. v. Tushie-Montgomery Assocs., 86 F.3d 656, 659 (7th Cir. 1996)
(“A question of law may be deemed ‘controlling’ if its resolution is quite
likely to affect the further course of the litigation, even if not certain to
do so.”); 16 Charles Alan Wright and Arthur R. Miller, Federal Practice & Procedure, §3930, (3d. ed.) (“There is no
doubt that a question is ‘controlling’ if its incorrect disposition would
require reversal of a final judgment.”).
Here, the controlling question of law is whether
Helms-Burton, contrary to normal principles of corporate
law, gives a plaintiff a “claim” to property when the plaintiff’s relationship to that property is that he or she owned shares
(or traces ownership of the claim to someone who owned shares) in a corporation
that owned the property, and that corporation is a Cuban corporation. That question raises
a purely legal issue about
the proper interpretation of the Helms- Burton Act, which is case
dispositive. See Mamani v. Berzain,
825 F.3d 1304, 1312-13 (11th Cir. 2016) (Section 1292(b) appeal in the Rule
12(b)(6) context is appropriate when the legal issue is a pure or abstract
question of law). When the parties raise
dispositive questions about the meaning
of
a statute, courts have little trouble concluding that the issue is a
“controlling question of law.” United
States ex rel. Little v. Triumph Gear Sys., Inc., 870 F.3d 1242, 1251 (10th
Cir. 2017); see also Dial v. Healthspring
of Ala., Inc., 612 F. Supp. 2d 1205, 1207 (S.D. Ala. 2007) (noting that the
“controlling question of law” requirement is met when the resolution of the
issue “requires an interpretation of the meaning of a statute”).
II. SUBSTANTIAL GROUNDS FOR DIFFERENCE OF OPINION EXIST ON WHETHER HELMS-BURTON FOLLOWS NORMAL PRINCIPLES OF CORPORATE LAW IN DETERMINING CLAIM OWNERSHIP
“Courts traditionally will find that a substantial
ground for difference of opinion exists where novel and difficult questions of
first impression are presented.” Reese v.
BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011). In making that
determination, “[t]he level of uncertainty required to find a substantial
ground for difference of opinion should be adjusted to meet the importance of
the question in the context of the specific case.” Wright et al., Federal Practice & Procedure § 3930.
Accordingly, where, as here, “proceedings that threaten to endure for several
years depend on an initial question of jurisdiction, limitations, or the like,
certification may be justified at a relatively low threshold of doubt.” Id.
This is one of the first cases ever brought under
Helms-Burton. Courts frequently grant Section 1292(b) motions to allow
appellate courts to resolve difficult issues of first impression. Laperriere
v. Vesta Insurance
Group, Inc., 526 F.3d 715, 719 (11th Cir. 2008)
(per curiam); Adams
v. Florida
Power Corp., 255 F.3d 1322, 1322 (11th Cir. 2001); Reese,
643 F.3d at 688; Mamani
v. Berzain, 07-22459, 2014 WL
12689038, at *3 (S.D. Fla. Aug. 18, 2014) (certifying question of first impression); Solutia Inc. v. McWane, Inc., CV
03-PWG-1345-E, 2008 WL 11337774, at *1 (N.D. Ala. June 25, 2008) (finding
substantial grounds for difference of opinion when “[n]either the Supreme Court
nor the Eleventh Circuit Court of Appeals has answered this question”).
Here there are two different
views that could be followed
as to whether traditional rules of
corporate form apply to Helms-Burton. Carnival has argued
that Bengochea does not have a claim to the Santiago Docks because under
corporate law “[t]he owner of the shares of stock in a company is not the owner of the corporation’s property.” Rhode Island Hosp. Tr. Co. v. Doughton, 270 U.S. 69, 81 (1926); accord Dole Food Co. v. Patrickson, 538
U.S. 468, 475 (2003) (“An individual shareholder, by virtue of his ownership of
shares, does not own the corporation’s assets[.]”); United States v. Wallach, 935 F.2d 445, 462 (2d Cir. 1991)
(“[S]hareholders do not hold legal title to any of the corporation's assets.
Instead, the corporation—the entity itself—is vested with the title.”); James
D. Cox & Thomas Lee Hazen, Treatise on the Law of Corporations
§ 7:2 (3d) (“Corporate property is owned by the corporation as a distinct
legal person; its shareholders have only an indirect interest in the assets and
business.”); 1 Fletcher Cyc. Corp. § 31 (rev. ed. 1999) (“The property of the corporation is its property
and not that of the shareholders
as owners.”). For this reason, shareholders cannot bring claims in their own
name asserting the loss or diminution in value of corporate assets. Cook v. Trinity Universal Ins. Co. of Kan.,
297 F. App’x 911, 913 (11th Cir.
2008) (“[A]n action to redress injuries to a corporation cannot be maintained by a shareholder in his own name but must be brought in the name of the corporation”
(quoting Stevens v. Lowder, 643 F.2d 1078,
1080 (5th Cir. Unit B Apr. 1981));
Chrystall v. Serden Techs.,
913 F. Supp. 2d 1341, 1361 (S.D. Fla. 2012) (suits alleging “company-wide
monetary harms” like “devaluation of stock or damages resulting from a sale of
assets at an unreasonable price” must be asserted derivatively in the name of
the corporation); see also EMI Ltd. v. Bennett, 738 F.2d 994, 997 (9th Cir.
1984) (“Generally, a shareholder does not have standing to redress an injury to the corporation in which it holds stock.”); 12B Fletcher Cyc. Corp. § 5924 (“In general a shareholder cannot sue as an individual to recover corporate assets.”). This type analysis has been
applied to pre-Revolution Cuban companies. See Nielsen v. Sec’y of Treasury, 424 F.2d 833, 841 (D.C. Cir.
1970) (looking to pre-Castro Cuban law and noting that the corporation, not the
shareholders, owned corporate property). Accordingly, applying normal corporate
law principles, a shareholder would have no right to “claim” corporate property
under Helms-Burton.1
The Court rejected this view finding that Helms-Burton
does not follow such corporate formalities: “[b]ased on contemporary dictionary
definitions, Congress would have understood that a claim to confiscated property
is substantially broader
than a direct interest in such property.” (Slip. op. at 11.) The Court
stated that Congress was not “legislating with corporate formalities in mind.”
(Slip. Op. at 11.)
There is room for reasonable disagreement over the first impression issue of who can bring a claim for corporate property
under Helms-Burton. The Supreme Court has required Congress to speak clearly when it intends to
abrogate “venerable common-law” principles of corporate form. United States v. Bestfoods, 524 U.S. 51,
62-63 (1998) (concluding that nothing in CERCLA was intended to reject the
corporate law principle that a corporation is not liable for the acts of its
subsidiaries). When Congress intends “to disregard structural ownership rules”
“it knows how to do so[.]” Dole Food Co.,
538 U.S. at 476. For example, “various federal statutes refer to ‘direct and
indirect ownership.’” Id. This type
of language—instructing Courts to look at indirect ownership—alerts the judiciary that Congress intends
to move beyond normal corporate
law
1 Moreover, here no shareholder derivative claim would lie because this case has not been brought
as a derivative action and because La Maritima, S.A., as a Cuban Corporation, is ineligible to bring
a claim under Helms-Burton, as only a U.S. National
can pursue claims.
22 U.S.C.§ 6082(a)(1)(A). Here, the Parreno family likely created
La Maritima, S.A., for several
reasons, including limitation of liability, tax benefits,
flexibility in raising
capital etc. The reasons these
benefits exist is because
under the law a corporation is viewed as a separate juridical entity capable of
owning assets in its own name. James D. Cox & Thomas Lee Hazen, Treatise on
the Law of Corporations § 7:2 (3d). Accordingly, while the individual enjoys
the benefits of incorporation he also accepts the reality that he no longer
owns the assets of the business post-incorporation, the corporation does.
conceptions of
ownership. Id. But Helms-Burton has
none of this kind of “indirect ownership” language.
The Court also reasoned that Carnival’s reading erases
the word “claim” from the statute. (Slip. Op. at 12.) Carnival
agrees that a shareholder whose shares were seized by the Castro
regime owns a claim against the Cuban government for the value of those
shares. However, a claim to shares is not
the same thing as a claim to underlying corporate assets. This reading does
not read “claim” out of the statute, rather it insists—as do normal principles
of corporate law—that a corporation pursue claims for the loss of its property
and a shareholder pursue claims for his or her own losses. See Glen v. Club Mediterranee, S.A., 450 F.3d 1251, 1255 (11th Cir.
2006) (“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.” (emphasis added)). The Court further stated that
Carnival’s interpretation would “effectively rewrite Helms-Burton to cover only
those plaintiffs who ‘own such property.” (Slip. Op. at 12.) Respectfully, that
is simply not the case. Carnival recognizes that after confiscation by the
Cuban government, a claimant no longer owns legal title to his or her property.
Glen v. Club Mediterranee, S.A., 365
F. Supp. 2d 1263, 1269-70 (S.D. Fla. 2005). Recognizing a Helms-Burton
plaintiff would no longer own legal title to the property as a result
of the expropriation, the statute
calls for the plaintiff to have a “claim” to such
property. But that does not mean that prior ownership is irrelevant; instead,
the analysis is whether
the plaintiff would be the owner of the property, but for the expropriation. See Glen, 450 F.3d at 1255 (“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.’”). Here, Bengochea never owned
the subject docks,
they were owned by La Maritima, S.A., prior to expropriation, and therefore, he cannot have a claim to the docks.
Looking beyond Helms-Burton’s text, this Court found
that Helms-Burton would likely allow a shareholder to pursue a trafficker in an underlying corporate asset by reading the statute in
pari materia with the International Claims Settlement Act of 1949. But that
Act, unlike Helms- Burton, uses typical language abrogating consideration of
corporate form, 22 U.S.C. § 1643b (allowing claims by direct and indirect
owners). Helms-Burton has none of this language, which “instructs [] that
Congress did not intend to disregard structural ownership rules[.]” Dole Food Co., 538 U.S.at 476.
Moreover, in this case, the FCSC respected corporate
formalities, holding a claim for the value of the docks in Santiago could not
be made because La Maritima, S.A., a Cuban entity, was the owner, and thus, not a proper claimant. As the FCSC explained:
Since La Maritma, S.A. was organized under the laws of Cuba, it does
not qualify as a corporate ‘national of the United States’ defined under Section 502 (1)(B) of the Act as a corporation or other
legal entity organized under the laws of the United States, or any State, the
District of Columbia, or the Commonwealth of Puerto Rico, whose ownership is
vested to the extent of 50 per centum or more in natural persons who are
citizens of the United States. In this
type of situation, it has been held that an American stockholder is entitled to file a claim for the value of his
ownership interest.
(Compl. Ex. A (ECF No. 1-1) at 4 (emphasis added).)
Under Helms-Burton’s scheme,
the FCSC’s findings in this
regard deserve significant deference because: “In any action brought under this
subchapter, the court shall accept as
conclusive proof of ownership of an interest in property a certification of a
claim to ownership of that interest that has been made by the Foreign Claims
Settlement Commission under
Title V of the International Claims Settlement Act of 1949.” 22
U.S.C. § 6083; see also 22 U.S.C. § 6082(a)(5)(B) (“In the case of any action brought
under this
section by a United
States national whose underlying claim
in the action was timely
filed with the Foreign Claims Settlement Commission
under title V of the International Claims Settlement Act of 1949 but was denied by the Commission, the court
shall accept the findings of the Commission on
the claim as conclusive in the action
under this section.” (emphasis added)). Thus,
like Parreno, Bengochea should
not be able to bring a claim for the assets owned by La Maritima, S.A.
Finally, this Court reasoned that Helms-Burton’s goal
was to deter trafficking (Slip Op. at 13), and that Carnival’s reading would
undermine that goal because, for claims held by Cuban companies, no one could
assert a claim for trafficking. 22 U.S.C. § 6082(a)(1)(A) (only U.S. Nationals
can pursue claims). (See also Slip
Op. at 13.) But Congress itself recognized that some pieces of confiscated
property would not be subject to Helms-Burton claims because they were owned by
non-United States nationals. Nonetheless, Congress declined to allow foreigners
to bring Helms-Burton suits. 22 U.S.C. § 6082(a)(1)(A).
Whether or not the Court’s view is correct that Congress
intended the Act to not be bound by normal principles of when corporate
shareholders can bring claims, it is clear that this is the type of issue that
would benefit from early appellate review. Mamani,
2014 WL 12689038 at *2 (certifying question when “there is no case law directly
on point and that there are substantial grounds for disagreement as to how the
. . . provision should be interpreted”); see
also McFarlin, 381 F.3d at 1258 (substantial grounds for disagreement exist when appeal
relates to the correctness
of district court application of law and reasoning); Lipton v. Documation, Inc., 590 F. Supp. 290, 291–92 (M.D. Fla.
1982), aff’d, 734 F.2d 740 (11th Cir.
1984) (finding substantial ground for difference of opinion on scope of application of legal theory);
Mamani v. Berzain, 07-22459-CIV, 2010 WL 11442696, at *2 (S.D. Fla. Mar. 17, 2010) (Jordan, J.) (finding substantial question when “there
are no cases directly on point, and there are substantial grounds for disagreement”);
Washburn v. Beverly Enterprises-Georgia, Inc., CV
106-051, 2007 WL 9700927, at *1 (S.D. Ga. Jan. 8, 2007) (finding factor met
when party raised “substantial questions” about order).
III. IMMEDIATE APPEAL WOULD MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THIS LITIGATION
There is little doubt that an immediate appeal will
“materially advance the ultimate termination
of the litigation,” 28 U.S.C. § 1292(b),
because such resolution “would serve to avoid
a trial or otherwise substantially shorten the litigation,” McFarlin, 381 F.3d at 1259. If the Court
is correct, then the Eleventh Circuit will have endorsed its expansive view of
the Act, clarifying threshold questions about the scope of Helms-Burton for the
benefit of not only the parties to this case,
but other similarly situated claimants. If the Court
of Appeals decides
the question presented here in Carnival’s favor, then
that determination would “dispose of the entire case.” Washburn, 2007 WL 9700927 at *1 (decision on an issue can
materially advance litigation if it would avoid trial); In re Pacific Forest Products, 335 B.R. 910, 924 (S.D. Fla. 2005).
Further, “[t]his case will involve
extensive and lengthy international discovery,” which could be avoided by an
immediate appeal. Mamani, 2010 WL
11442696 at *3. By potentially avoiding this costly process, an appeal will advance the litigation. See In re Managed Care Litigation, 2002
WL 1359736, *1 (S.D. Fla. 2002) (certification of immediate appeal order based
on “extent to which additional time and expense may be saved by the appeal”).
CONCLUSION
Carnival respectfully requests
that the Court amend its August 26, 2019, Order to certify
it for interlocutory appeal.
CERTIFICATE OF GOOD FAITH CONFERENCE
Pursuant to Local
Rule 7.1(a)(3), counsel for Carnival certifies that he has conferred with
opposing counsel, and Plaintiff opposes the relief sought herein.
Dated:
September 5, 2019 Respectfully
submitted,
George J. Fowler, III (pro hac vice)
Luis Llamas
(Florida Bar No. 89822) JONES
WALKER LLP
201 St. Charles Ave. New
Orleans, LA 70170
Telephone:
(504) 582-8752 gfolwer@joneswalker.com
llamas@joneswalker.com
By:
s/ Stuart H. Singer
Stuart H. Singer
(Florida Bar No. 377325)
Evan Ezray
(Florida Bar No. 1008228)
BOIES SCHILLER FLEXNER LLP
401 East Las Olas Boulevard,
Suite 1200 Fort Lauderdale, Florida 33301 Telephone: (954) 356-0011 ssinger@bsfllp.com
CERTIFICATE OF SERVICE
I
HEREBY CERTIFY that a true and correct copy of the foregoing was served on all
counsel of record via the court’s CM/ECF System on September 5, 2019.
By:/s/ Stuart H. Singer
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION
CASE NO.: 19-cv-21725-KING
JAVIER GARCIA-BENGOCHEA,
Plaintiff,
v.
CARNIVAL CORPORATION d/b/a/
CARNIVAL
CRUISE LINE, a foreign
corporation,
Defendant.
/
[PROPOSED] ORDER CERTIFYING PERMISSION TO FILE INTERLOCUTORY APPEAL
THIS MATTER is before the Court on Defendant Carnival
Corporation’s Motion to Certify Interlocutory Appeal.
The Court has considered the motion, the record and applicable law, and is fully advised. For the reasons
that follow, the Motion is granted.
WHEREFORE, it appearing to this Court that this Order
involves a controlling question of law as to which there are substantial
grounds for difference of opinion, and that an
immediate appeal from this Order may materially advance the ultimate
termination of the litigation.
Accordingly, it is ORDERED and ADJUDGED as follows:
1.
The August 26, 2019, Order is hereby, AMENDED; and
2.
The August 26, 2019, Order is hereby, CERTIFIED for interlocutory appeal
pursuant to 28 U.S.C. § 1292(b). The certified issue is whether a person who
alleges that they hold a claim to shares in a Cuban corporation can state a Helms-
Burton claim
based on trafficking in property that was owned by the Cuban corporation, and
not the shareholder, prior to confiscation.
DONE AND ORDERED in Chambers at Miami, Florida, on ,
2019.
JAMES LAWRENCE KING
UNITED STATES DISTRICT JUDGE
cc: All counsel of record
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