Rodriguez Licea et al v. Curacao Drydock Co - Complaint Answer

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 06-22128-CIV-KING/GARBER

ALBERTO JUSTO RODRIGUEZ LICEA, FERNANDO ALONSO HERNANDEZ, AND LUIS ALBERTO CASANOVA TOLEDO, Plaintiffs, v. CURAÇAO DRYDOCK COMPANY, INC., A/K/A CURAÇAOSE DOKMAATSCHAPPIJ NV, A/K/A CDMNV, Defendant. ___________________________________________/

ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT Defendant, Curaçao Drydock Company, Inc., a/k/a Curaçaose Dokmaatschappij NV,

a/k/a CDMNV (“Defendant”), hereby states the following as its answer and affirmative defenses

to Plaintiffs’ Amended Complaint [DE # 31]:

INTRODUCTION

Defendant denies all allegations of Plaintiffs’ self-described Introduction.

NATURE OF THE ACTION

1. In response to Paragraph 1, Defendant admits that Plaintiffs seek compensatory

and punitive damages from Defendant, but Defendant denies that Plaintiffs are entitled to any

relief whatsoever.

2. In response to the first sentence of Paragraph 2, Defendant admits that this case

has been brought in the United States, but denies that the United States is the appropriate forum

for this case. Defendant is without knowledge or information sufficient to admit or deny the

Case 1:06-cv-22128-JLK Document 71 Entered on FLSD Docket 03/17/2008 of 24

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allegations contained in the second and fourth sentences of Paragraph 2. In response to the third

sentence, Defendant denies that Plaintiffs were subject to any bondage in Curaçao, and

Defendant is without knowledge as to Plaintiffs’ purported adventures and travels outside of

Curaçao. To the extent not expressly admitted herein, Defendant denies the remaining

allegations contained in Paragraph 2.

3. Defendant denies the allegations contained in Paragraph 3.


5. Defendant is without knowledge or information sufficient to admit or deny the


6. In response to the allegations contained in Paragraph 6, Defendant admits that,

under certain circumstances, U.S. law grants U.S. district courts jurisdiction to hear actions

brought by aliens to remedy violations of international law. However, Defendant denies that this

case should be heard in this Court because the appropriate forum is Curaçao. Defendant further

denies that it has violated any aspect of international law and, as a result, denies that Plaintiffs

are entitled to any relief whatsoever.

PARTIES



8. In response to the allegations contained in Paragraph 8, Defendant admits that it is

a corporation organized under the laws of Curaçao, Netherlands Antilles, but denies that it is

currently doing business in the United States directly and in its own right, or through Klattenberg

Marine Associates, Inc.


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9. In response to the allegations contained in Paragraph 9, Defendant admits that it

contracted for the repair of, and repaired, U.S.-registered vessels at its facility in Curaçao.

Defendant denies that Plaintiffs were forced to work. To the extent not expressly admitted

herein, Defendant denies the remaining allegations contained in Paragraph 9.

10. Defendant admits the allegations contained in Paragraph 10.

JURISDICTION AND VENUE

Subject Matter Jurisdiction

11. In response to Paragraph 11, Defendant admits that Plaintiffs seek relief from this

Court regarding claims brought under 28 U.S.C. § 1331, 28 U.S.C. § 1350, 18 U.S.C. § 1964(c),

and 28 U.S.C. § 1367, but Defendant denies that Plaintiffs are entitled to any relief whatsoever.

12. In response to Paragraph 12, Defendant submits that the text of the Alien Tort

Statute speaks for itself.

13. In response to Paragraph 13, Defendant denies that it committed the tort of forced

labor. Defendant denies the remaining allegations contained in Paragraph 13 because they call

for a legal conclusion.

13 [sic]. Defendant denies the allegations contained in Plaintiffs’ second Paragraph

13 because they call for a legal conclusion.


15. In response to Paragraph 15, Defendant admits that Plaintiffs claim that this Court

has supplemental jurisdiction over the remaining claims, but Defendant denies that Plaintiffs are

entitled to any relief whatsoever.


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Personal Jurisdiction and Venue

16. Defendant denies the allegations contained in Paragraph 16. Nonetheless,

Defendant admits that it has withdrawn its defense of lack of personal jurisdiction and has

submitted to the jurisdiction of this Court.

17. Defendant denies the allegations contained in Paragraph 17. Nonetheless,

Defendant admits that it has withdrawn its defense of lack of personal jurisdiction and has

submitted to the jurisdiction of this Court.

18. Defendant denies the allegations contained in the first sentence of Paragraph 18.

Nonetheless, Defendant admits that it has withdrawn its defense of lack of personal jurisdiction

and has submitted to the jurisdiction of this Court. In response to the allegations contained in the

second sentence of Paragraph 18, Defendant submits that Federal Rule of Civil Procedure 4(k)(2)

speaks for itself. Defendant denies the remaining allegations contained in Paragraph 18 because

they call for a legal conclusion.

The Defendant’s Contacts

a. Direct Contacts




contracted to repair U.S.-registered vessels in Curaçao, and that such repairs amounted to less

than 10% Defendant’s overall business, but Defendant denies the remaining allegations

contained in Paragraph 21.


contracted to repair U.S.-registered vessels in Curaçao, and that such repairs amounted to less


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than 10% Defendant’s overall business, but Defendant denies the remaining allegations




previously filed seven lawsuits in the United States, but denies that doing so was sufficient to

establish this Court’s personal jurisdiction over Defendant.


has an exclusive sales agent in the United States. To the extent not expressly admitted herein,

Defendant denies the remaining allegations contained in Paragraph 25.




had a separate and distinct subsidiary in the United States that ceased all operations in 1988, but

was not officially dissolved until 1997. To the extent not expressly admitted herein, Defendant

denies the remaining allegations contained in Paragraph 28.

b. Activity Purposefully Directed at the United States




c. Contacts in the United States Through an Agent


General Jurisdiction and Venue Allegations



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allegations contained in the first and third sentence sentences of Paragraph 34. In response to the

second sentence of Paragraph 34, Defendant denies that Plaintiffs were subject to any bondage in

Curaçao, and Defendant is without knowledge as to the remaining allegations contained in the

second sentence of Paragraph 34. To the extent not expressly admitted herein, Defendant denies

the remaining allegations contained in Paragraph 34.

35. In response to the allegations contained in Paragraph 35, Defendant denies that

this Court is a proper venue for this action. Defendant submits that Curaçao is the proper venue

for this action.

36. In response to the allegations contained in Paragraph 36, Defendant denies that

venue is proper in this district. Defendant submits that Curaçao is the proper venue for this

action.

STATEMENT OF FACTS


allegations contained in the first sentence of Paragraph 37. In response to the remaining

allegations contained in Paragraph 37, Defendant submits that the United States Department of

State Country Report on Human Rights for Cuba (“State Department Report”) speaks for itself.








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allegations contained in Paragraph 41, Defendant submits that the State Department Report

speaks for itself.


allegations contained in the first two sentences of Paragraph 42. In response to the remaining


speaks for itself.




speaks for itself.








speaks for itself.



Defendant submits that no response is necessary to the allegations contained in the second

sentence of Paragraph 49. To the extent a response is necessary, Defendant denies the

allegations contained in the second sentence of Paragraph 49.


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51. In response to the allegations contained in Paragraph 51, Defendant states that,

because of the significant debt owed by CDC Havana to Defendant for repairing ships that CDC

Havana could not, monies that Defendant would otherwise pay to the Havana shipyard for the

provision of temporary workers from Cuba are subtracted from the debt owed by the shipyard.

Defendant also states that the temporary workers from Cuba were also paid a per diem payment

and provided additional benefits. To the extent not expressly admitted herein, Defendant denies

the remaining allegations contained in Paragraph 51


53. In response to the allegations contained in Paragraph 53, Defendant admits that

Manuel Bequer was a supervisor of Cuban foreign workers at Defendant’s facility. To the extent

not expressly admitted herein, Defendant denies the remaining allegations contained in

Paragraph 53.



Manuel Bequer held the title of Production Manager, but Defendant denies that Manuel Bequer

is still employed with Defendant.

56. Defendant admits the allegations contained in the first, second, and third

sentences of Paragraph 56. Defendant is without knowledge or information sufficient to admit or

deny the remaining allegations contained in Paragraph 56.


58. In response to the allegations contained in Paragraph 58, Defendant is without

knowledge or information sufficient to admit or deny what Manuel Bequer knew, but Defendant


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denies that Cuban workers worked for Defendant under threat of physical or psychological harm.

To the extent not expressly admitted herein, Defendant denies the remaining allegations








In response to the allegations contained in the second sentence of Paragraph 64, Defendant

admits that temporary foreign workers, including workers from Cuba, were rotated in and out of

Defendant’s facility in Curaçao.


temporary Cuban workers were intermittently sent back to Cuba. Defendant is without

knowledge or information sufficient to admit or deny the remaining allegations contained in

Paragraph 65.



Plaintiff Hernandez worked at Defendant’s facility in Curaçao, but Defendant denies that he was

ordered to do so by Defendant. Defendant is without knowledge or information sufficient to

admit or deny the remaining allegations contained in Paragraph 67.


Plaintiff Rodriguez worked at Defendant’s facility in Curaçao, but Defendant denies that he was


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Plaintiff Toledo worked at Defendant’s facility in Curaçao, but Defendant denies that he was







72. In response to the allegations contained in the first sentence of Paragraph 72,

Defendant admits that Plaintiffs worked periodically at Defendant’s facility. Defendant denies

the allegations contained in the second sentence of Paragraph 72. To the extent not expressly

admitted herein, Defendant denies the remaining allegations contained in Paragraph 72.




there was no employment contract between Plaintiffs and Defendant, but Defendant is without

knowledge or information sufficient to admit or deny whether there was an employment contract

between Plaintiffs and the Cuban government or any Cuban government agency.




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allegations contained in the first sentence of Paragraph 76. Defendant denies the remaining












83. In response to the allegations contained in the first sentence of Paragraph 83,

Defendant admits that, upon their arrival in Curaçao, foreign workers, including Plaintiffs, were

greeted by Defendant’s representatives, and that Defendant’s representatives offered to safeguard

the workers’ passports during their stay in Curaçao because all workers, including Plaintiffs,

were issued identification badges that allowed them to travel anywhere on the island of Curaçao.

Defendant denies the allegations contained in the second sentence of Paragraph 83. To the

extent not expressly admitted herein, Defendant denies the remaining allegations contained in

Paragraph 83.


allegations contained in the first sentence of Paragraph 84, but Defendant denies that Plaintiffs’


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decision to provide their passports was anything but voluntary. Defendant admits the allegations

contained in the second sentence of Paragraph 84.





repaired U.S.-registered vessels, but Defendant denies that it forced workers to do so. To the

extent not expressly admitted herein, Defendant denies the remaining allegations contained in

Paragraph 88.





admits that Plaintiffs and other workers cleaned, repaired, and painted ships and oil platforms,

but Defendant denies that Plaintiffs and other works were forced to do so. Defendant denies the

allegations contained in the third sentence of Paragraph 91. Defendant admits the allegations

contained in the fourth sentence of Paragraph 91. Defendant denies the allegations contained in

the fifth and sixth sentences of Paragraph 91. Defendant admits the allegations contained in the

seventh sentence of Paragraph 91. Defendant denies the allegations contained in the eighth and

ninth sentences of Paragraph 91. To the extent not expressly admitted herein, Defendant denies

the remaining allegations contained in Paragraph 91.

92. Defendant denies the allegations contained in the first, second, and third sentences

of Paragraph 92. In response to the allegations contained in the fourth sentence of Paragraph 92,


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Defendant admits that Plaintiff Licea was injured, but Defendant denies the remaining

allegations.

93. In response to the allegations contained in Paragraph 93, Defendant admits that,

while working on a ship docked at Defendant’s facility, Plaintiff Licea was injured in June 2002

and received treatment for his injuries. To the extent not expressly admitted herein, Defendant

denies the remaining allegations contained in Paragraph 93.




97. In response the allegations contained in Paragraph 97, Defendant admits that

Plaintiff Licea left Defendant’s premises. To the extent not expressly admitted herein,

Defendant denies the remaining allegations contained in Paragraph 97.

98. In response the allegations contained in Paragraph 98, Defendant admits that

Plaintiffs Hernandez and Toledo left Defendant’s premises. To the extent not expressly admitted

herein, Defendant denies the remaining allegations contained in Paragraph 98.






allegations contained in the first sentence of Paragraph 103. In response to the allegations

contained in the second sentence of Paragraph 103, Defendant is without knowledge or


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information sufficient to admit or deny, except that Defendant denies that Plaintiffs escaped from

a forced labor camp.













114. The allegations contained in Paragraph 114 constitute a legal conclusion to which

no response is required. To the extent a response is necessary, Defendant denies that it engaged

in any forced labor.








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FIRST CLAIM FOR RELIEF

(FORCED LABOR)

122. Defendant realleges and incorporates its responses to Paragraphs 1 through 121 as

if fully set forth herein.



The remaining allegations contained in Paragraph 124 constitute a legal conclusion to which no

response is required. To the extent a response is necessary, Defendant denies that it engaged in

any wrongful conduct.

125. The allegations contained in Paragraph 125 constitute a legal conclusion to which

no response is required. To the extent a response is necessary, Defendant denies that it engaged

in any wrongful conduct.

126. In response to the allegations contained in Paragraph 126, Defendant submits that

the Universal Declaration of Human Rights speaks for itself.


the Agreement for the Prosecution and Punishment of the Major War Criminals of the European

Axis, and Charter of the International Military Tribunal speak for themselves.


Article 4 of the Forced Labour Convention (No. 29) speaks for itself.

129. Defendant denies that it compelled any forced labor on the part of Plaintiffs or

otherwise and specifically denies the allegations contained in Paragraph 129.



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134. In response to the allegations contained in Paragraph 134, Defendant denies that it

perpetrated any crimes or torts against Plaintiffs, and further denies the remaining allegations

contained in Paragraph 134 because they call for a legal conclusion.

SECOND CLAIM FOR RELIEF

(False Imprisonment)






THIRD CLAIM FOR RELIEF

(Negligence)






FOURTH CLAIM FOR RELIEF

(Racketeer Influenced and Corrupt Organizations Act)


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144. Defendant admits the allegations contained in Paragraph 144.







submits that 18 U.S.C. § 1589 speaks for itself.



submits that 18 U.S.C. § 1590 speaks for itself.







157. To the extent not expressly admitted above, Defendant denies all remaining

allegations in the Amended Complaint.


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AFFIRMATIVE DEFENSES

Defendant asserts the following affirmative defenses, without conceding that it has the

burden of proof or persuasion as to any of them:

First Affirmative Defense

Plaintiffs fail to state a cause of action for violation of the Alien Tort Act because

Defendant did not engage in forced labor – the underlying tort alleged to give rise to the claim.

Second Affirmative Defense

Plaintiff Licea’s claim for negligence is barred by the applicable statute of limitations.

According to the Amended Complaint, Plaintiff Licea’s injury allegedly occurred on or before

June 5, 2002, and the original Complaint was not filed until August 24, 2006.

Third Affirmative Defense

Plaintiffs’ claim for negligence is barred in that the losses and damages of Plaintiffs, if

any, are the direct and proximate result of the acts and conduct of other persons or entities

(including plaintiffs) for which Defendant is not, and cannot be deemed to be, responsible.

Fourth Affirmative Defense

Plaintiffs fail to state a cause of action for false imprisonment because Plaintiffs were not

wrongfully detained or deprived of their liberty.

Fifth Affirmative Defense

Plaintiffs’ claim for negligence is barred by the doctrine of assumption of risk.

Sixth Affirmative Defense

Plaintiffs’ claim for negligence is barred by the doctrine of comparative negligence.


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Seventh Affirmative Defense

This Court lacks subject matter jurisdiction under the Alien Tort Act because Defendant,

a private company, was neither acting as an officer of the state or under color of state law, nor

did Defendant violate the law of nations for extreme forms of egregious conduct.

Eighth Affirmative Defense

Plaintiffs fail to state a cause of action for violation of the Alien Tort Act because the

Universal Declaration of Human Rights is an insufficient foundation for claims brought under

the Alien Tort Act. See Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004).

Ninth Affirmative Defense

Plaintiffs fail to state a cause of action for violation of the Alien Tort Act because the

United States is not a signatory to the Forced Labour Convention (No. 29) and, as such, the

Forced Labour Convention (No. 29) is an insufficient foundation for claims brought under the

Alien Tort Act. See John Roe I v. Bridgestone Corp., 492 F. Supp. 2d 988, 1012 (S.D. Ind.

2007).

Tenth Affirmative Defense

Plaintiffs’ claims under the Racketeer Influenced and Corrupt Organizations Act

(“RICO”) are barred because damages resulting from physical injuries are not recoverable under

that statute.

Eleventh Affirmative Defense

Plaintiffs’ claims for false imprisonment fail because Defendant was not an active

participant in any restraint of or denial of liberty for Plaintiffs.


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Twelfth Affirmative Defense

Plaintiffs’ claims are barred by the doctrine of laches.

Thirteenth Affirmative Defense

Plaintiffs fail to state a cause of action under the Alien Tort Act because a private

defendant may not be sued under the statute for aiding and abetting a foreign government in

violating international law.

Fourteenth Affirmative Defense

Plaintiffs’ claim should be dismissed on the doctrine of forum non conveniens in favor of

Curaçao.

Fifteenth Affirmative Defense

This Court is not the proper venue for this action, and this Court has discretion to transfer

or dismiss this action in favor of the proper venue.

Sixteenth Affirmative Defense

Plaintiffs’ claims for punitive damages are barred because such damages are not

recoverable under Netherlands Antilles law.

Seventeenth Affirmative Defense

Any injuries or damage suffered by Plaintiffs were not caused by Defendant and were

instead due to the fault of others.

Eighteenth Affirmative Defense

Plaintiffs’ claims are barred by the Act of State Doctrine.

Ninteenth Affirmative Defense

Plaintiffs Hernandez’s and Toledo’s claims are barred because they have suffered no

damages to person or property.


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Twentieth Affirmative Defense

Plaintiffs’ RICO claims fail because they cannot establish that Defendant intentionally set

out to deprive Plaintiffs of either their money, property or liberty.

Twenty-first Affirmative Defense

Plaintiffs’ RICO claims fail because they cannot establish that Defendant deprived

Plaintiffs of their money, property, or liberty.

Twenty-second Affirmative Defense

Plaintiffs’ RICO claims fail because they cannot establish that Defendant made any

threats of serious harm or physical restraint to any of the Plaintiffs.

Twenty-third Affirmative Defense

Plaintiffs’ RICO claims fail because they cannot establish that Defendant intended to

cause any of the Plaintiffs to believe that if they did not perform certain labor or services that

they would suffer serious harm or physical restraint.

Twenty-fourth Affirmative Defense

Plaintiffs’ RICO claims fail because they cannot establish that Defendant physically

restrained any of the Plaintiffs.

Twenty-fifth Affirmative Defense

Plaintiffs’ RICO claims fail because they cannot establish that Defendant illegally

obtained the labor or services of any of the Plaintiffs.

Twenty-sixth Affirmative Defense

Plaintiffs’ RICO claims fail because Defendant did not engage in interstate commerce.


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Twenty-seventh Affirmative Defense

Plaintiffs’ RICO claims are barred because they cannot establish a pattern of racketeering

activity.

Twenty-eighth Affirmative Defense

Plaintiffs’ RICO claims fail because the activity in question does not rise to the level of a

substantive RICO violation.

Twenty-ninth Affirmative Defense

Plaintiffs' claim of conspiracy under 18 U.S.C. § 1962(d) fails because the underlying

activity does not rise to the level of a substantive RICO violation.

WHEREFORE, Defendant respectfully requests that the Court dismiss Plaintiffs’ claims

in their entirety, enter judgment against Plaintiffs, and grant such other and further relief as the

Court deems necessary and proper.

Dated: March 17, 2008 PROSKAUER ROSE LLP Attorneys for Defendant CDMNV 2255 Glades Road, Suite 340 West Boca Raton, Florida 33431 Telephone: (561) 241-7400 Facsimile: (561) 241-7145 By: s/ Stephanie Reed Traband__ Matthew Triggs Florida Bar No. 0865745 [email protected] Stephanie Reed Traband Florida Bar No. 0158471 [email protected]


mailto:[email protected]


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 17th day of March, 2008, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF. _s/ Stephanie Reed Traband_____________ Stephanie Reed Traband


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Service List Case No. 06-22128-CIV-KING/GARBER

United States District Court, Southern District of Florida

Seth Miles [email protected] Grossman Roth, P.A. Grand Bay Plaza, Penthouse One 2665 South Bayshore Drive Miami, FL 33133 Telephone: (305) 442-8666 Facsimile: (305) 779-9595 Attorney for Plaintiffs Service via CM/ECF Notice of Electronic Filing John Andres Thornton [email protected] John Andres Thornton, PL 100 SE 2d Ave., Ste. 2700 Miami, FL 33131 Telephone: (305) 532-6851 Facsimile: (305) 538-1070 Attorney for Plaintiffs Service via CM/ECF Notice of Electronic Filing




Rodriguez Licea et al v. Curacao Drydock Co - Complaint Answer

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