Marlene Cueto Iglesias v. Pernod Ricard

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12398
____________________
MARLENE CUETO IGLESIAS,
MIRIAM IGLESIAS ALVAREZ,
Plaintiffs-Appellants,
versus
PERNOD RICARD,
Public Societe Anonyme,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-20157-KMW
____________________
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2 Opinion of the Court 21-12398
Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and BRASHER,
Circuit Judges.
PER CURIAM:
Plaintiffs-Appellants Marlene Cueto Iglesias and her mother
Miriam Iglesias Alvarez appeal the district court’s dismissal of their
claims against Pernod Ricard, Public Societe Anonyme, (“PRSA”)
for trafficking in violation of Title III of the LIBERTAD Act, 22
U.S.C. § 6082 (commonly referred to as “the Helms-Burton Act”).
Because Appellants forfeited their arguments in support of per-
sonal jurisdiction by failing to properly develop them in the district
court and waived their arguments on appeal, we affirm.
I. BACKGROUND
Appellants alleged that PRSA violated the Helms-Burton Act
by trafficking in property their family owned until the Cuban gov-
ernment confiscated it in 1963. In particular, Appellants asserted
that the Cuban government wrongfully and forcefully took the as-
sets of Conac Cueto, C.I.A., (“Cueto”), a Cuban-based cognac pro-
ducer and seller founded by a now-deceased member of Appel-
lants’ family. 1 These assets included certain intellectual property;
thousands of bottles and oak barrels; labels, corks, tasters, and
1 Cueto was founded by Fernando Tomas Cueto Sanchez. Appellants are
Sanchez’s surviving daughter and widow.
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21-12398 Opinion of the Court 3
meters; an established customer market segment; and other assets
that Cueto used in the production and sale of cognac.
According to Appellants, the Cuban government eventually
transferred all these assets to Cuba Ron, S.A., a company it founded
with PRSA around 1993. Appellants alleged that Cuba Ron used
and continues to use their confiscated property to distribute Ha-
vana Club rum and other spirits globally. More specifically, they
asserted that Havana Club rum is aged using oak barrels that Cuba
confiscated from Cueto.
Marlene Cueto Iglesias filed the action originally, but she
amended the initial complaint to add Miriam Iglesias Alvarez as a
plaintiff. PRSA then moved to dismiss, arguing (among other
things) that the district court lacked personal jurisdiction over it.
The district court granted the motion as it sought to dismiss based
on lack of personal jurisdiction, but it also gave Appellants leave to
file an amended complaint. Noting that the First Amended Com-
plaint failed to specify whether Appellants alleged the existence of
general or specific personal jurisdiction, the court held the allega-
tions in the complaint failed to support either.
The district court added that Appellants had failed to suffi-
ciently allege that any of PRSA’s subsidiaries were simply the alter-
ego of PRSA. It also reasoned that even if the First Amended Com-
plaint had alleged an alter-ego theory, so that PRSA’s subsidiaries’
contacts with the state of Florida could be attributed to PRSA, the
contacts alleged in the complaint were not sufficient to support per-
sonal jurisdiction. Ultimately, the district court dismissed the First
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4 Opinion of the Court 21-12398
Amended Complaint without prejudice, giving Appellants leave to
file a motion for jurisdictional discovery as well as a Second
Amended Complaint.2
The Second Amended Complaint added allegations that one
of PRSA’s subsidiaries “allows international travelers departing
from the Miami Airport or Fort Lauderdale Airport to purchase
Havana Club and Martell Cohiba Cognac, duty free.” PRSA
moved to dismiss the Second Amended Complaint. Again, it ar-
gued that Appellants’ complaint failed to include facts sufficient to
support the existence of personal jurisdiction. PRSA attached to its
motion declarations from Antoine Brocas, the Group Corporate
Affairs Director and Secretary of the Board at PRSA, and Alejandro
Manuel Flores, the Legal and Public Affairs Director for Pernod Ri-
card Americas Travel Retail LLC, stating that neither PRSA nor any
of its subsidiaries had ever sold, promoted, or distributed Havana
Club rum or any product of Cuban origin anywhere in the United
States, including in Florida at the Miami or Fort Lauderdale air-
ports.
Appellants filed a response in opposition. They titled a sub-
section of it “Defendant’s Website” and contended that personal
jurisdiction existed by virtue of PRSA’s alleged contact with the
state of Florida in the form of PRSA’s website that allegedly allows
2 Appellants did file a motion for jurisdictional discovery, but the magistrate
judge denied it, as well as two renewed motions for jurisdictional discovery
that followed it.
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21-12398 Opinion of the Court 5
Florida residents to order Havana Club rum. Without making a
single argument about (or even mention of) PRSA’s subsidiaries’
alleged sale of Havana Club rum in the Miami and Fort Lauderdale
airports that Appellants had previously alleged in their complaint,
Appellants asserted that “by and through [PRSA’s] Website and its
business relationship with its subsidiaries, [i]t is entirely plausible
that [PRSA] personally or through an agent operated, conducted,
engaged in, or carried business in Florida.”
In support of their response, Appellants attached three dec-
larations: one from each of the two Appellants, and another from
a third individual who attested to having purchased Havana Club
3-Year-Old Rum online from PRSA’s website. Buried within Mir-
iam Iglesias Alvarez’s declaration, she asserted that “Pernod Ricard
is selling Havana Club Rums . . . via Commercial Internet and
through their Stores at MIA Airport and Ports.” 3 Collectively, the
declarations provided no other allegations or evidence concerning
the alleged sale of PRSA products at the Miami airport and ports
(and none whatsoever about the Fort Lauderdale airport). And
3 We note that there are two different “Havana Club Rum” products that are
sold globally. One is produced by Bacardi, the other by PRSA. One of PRSA’s
subsidiaries sued Bacardi over use of the “Havana Club” name but lost after a
bench trial. Pernod Ricard USA LLC v. Bacardi U.S.A., Inc., 702 F. Supp. 2d
238 (D. Del. 2010). The district court in that case entered a finding of fact that
the only Havana Club Rum sold in the United States was Bacardi’s Havana
Club Rum, which was sold in Florida. Id. at 241. We do not rely on this in-
formation in our analysis but note it in the interest of clarity because this case
discusses Havana Club Rum.
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6 Opinion of the Court 21-12398
Appellants’ opposition to PRSA’s motion to dismiss never so much
as referenced the single throw-away statement in the declaration.
The district court granted PRSA’s motion to dismiss the Sec-
ond Amended Complaint, holding that Appellants had failed to
remedy the shortfalls the district court had identified in the order
dismissing the First Amended Complaint.
II. STANDARD OF REVIEW
We review de novo the district court’s dismissal for lack of
personal jurisdiction. Meier ex rel. Meier v. Sun Int’l Hotels, Ltd..,
288 F.3d 1264, 1268 (11th Cir. 2002). When contested, the plaintiff
bears the burden of establishing a prima facie case of personal ju-
risdiction over a nonresident defendant, which requires the plain-
tiff to present enough evidence to withstand a motion for a directed
verdict. Id. at 1268–1269.
III. DISCUSSION
Ordinarily, a federal court determines whether it has per-
sonal jurisdiction by looking first to the laws of the state in which
it sits. See Fed. R. Civ. P. 4(k)(1) (in general, serving a summons or
filing a waiver of service establishes personal jurisdiction over a de-
fendant). If the forum State’s laws would authorize the exercise of
personal jurisdiction, the federal court then evaluates whether ex-
ercising jurisdiction is consistent with due-process limitations.
Even if the forum State’s laws would not authorize the exer-
cise of personal jurisdiction, a federal court may still be able to
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21-12398 Opinion of the Court 7
exercise jurisdiction under Rule 4(k)(2). That rule allows for the
service of summons or the filing of a waiver of service to establish
personal jurisdiction if the claim arises under federal law; the de-
fendant is not subject to the jurisdiction of any state courts of gen-
eral jurisdiction; and exercising jurisdiction over the defendant
would be consistent with the United States Constitution and laws.
Fed. R. Civ. P. 4(k)(2).
On appeal, Appellants contend that the district court erred
by focusing the personal-jurisdiction analysis too narrowly, looking
(under Rule 4(k)(1)) to PRSA’s contacts with Florida rather than
(under Rule 4(k)(2)) with the United States as a whole. In their
view, the district court should have considered all PRSA’s alleged
contacts with the United States to determine whether it had juris-
diction over PRSA. Appellants further argue that even if the anal-
ysis is limited to PRSA’s contacts with Florida, specific personal ju-
risdiction exists because one of PRSA’s agents allows international
travelers departing from either the Miami or Fort Lauderdale Air-
port to purchase Havana Club rum. 4 Without reaching the argu-
ment about the proper scope of the jurisdictional analysis, we af-
firm the district court’s dismissal because Appellants have forfeited
4 The Supreme Court has recognized two types of personal jurisdiction: gen-
eral (or “all purpose”) jurisdiction, and specific (“or case-linked”) jurisdiction.
Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct. 1017,
1024 (2021). Only the latter is implicated here, as Appellants do not contend
on appeal that the district court can exercise general personal jurisdiction over
PRSA.
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8 Opinion of the Court 21-12398
or abandoned all their arguments in support of personal jurisdic-
tion.
To explain why, we start with the only difference of note
between the First Amended Complaint and the Second Amended
Complaint: the allegation that a subsidiary of PRSA allows travel-
ers to purchase Havana Club rum at certain Florida airports. On
appeal, Appellants contend that specific personal jurisdiction exists
through “an agency theory” that allows the contacts of PRSA’s sub-
sidiary to be attributed to PRSA itself. But Appellants never made
any argument about an agency relationship to the district court,
choosing instead to argue that PRSA was the “alter ego” of its sub-
sidiaries. As Appellants themselves recognize, these are distinct
theories of liability.
And even if we ignored that shift in Appellants’ arguments,
Appellants nonetheless forfeited their argument about the sale of
Havana Club rum in airports because they failed to properly pre-
sent and develop it in the district court. To be sure, the Second
Amended Complaint included an allegation about airport sales.
But after PRSA moved to dismiss the complaint and submitted ev-
idence that it did not sell its products in the Miami and Fort Lauder-
dale airports (or anywhere in the United States), Appellants relied
in their response entirely on an argument that PRSA was selling
Havana Club rum in Florida through its website—an argument
that Appellants have since abandoned by failing to make it in their
initial brief on appeal. The passing reference in Miriam Iglesias Al-
varez’s declaration to PRSA’s alleged sale of Havana Club rum
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21-12398 Opinion of the Court 9
“through their stores at MIA Airports and Ports” did not preserve
the argument in the district court, and as a general rule, we will not
pass on arguments that were not properly preserved in the district
court. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d
1324, 1331-33 (11th Cir. 2004) (holding that, but for exceptional cir-
cumstances not present here, this Court will not address arguments
not raised in the district court).
IV. CONCLUSION
We affirm the district court’s dismissal of Appellants’ Second
Amended Complaint for lack of personal jurisdiction.
AFFIRMED.