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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

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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. 4. 5. Defendant denies the allegations contained in Paragraph 3. Defendant denies the allegations contained in Paragraph 4. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in Paragraph 5. 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 7. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in Paragraph 7. 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. 14. 15. Defendant denies the allegations contained in Paragraph 14. 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 19. 20. 21. Defendant denies the allegations contained in Paragraph 19. Defendant denies the allegations contained in Paragraph 20. In response to the allegations contained in Paragraph 21, Defendant admits that it

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. 22. In response to the allegations contained in Paragraph 22, Defendant admits that it

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 contained in Paragraph 22. 23. 24. Defendant denies the allegations contained in Paragraph 23. In response to the allegations contained in Paragraph 24, Defendant admits that it

previously filed seven lawsuits in the United States, but denies that doing so was sufficient to establish this Court’s personal jurisdiction over Defendant. 25. In response to the allegations contained in Paragraph 25, Defendant admits that it

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. 26. 27. 28. Defendant denies the allegations contained in Paragraph 26. Defendant denies the allegations contained in Paragraph 27. In response to the allegations contained in Paragraph 28, Defendant admits that it

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. 29. 30. 31. Activity Purposefully Directed at the United States

Defendant denies the allegations contained in Paragraph 29. Defendant denies the allegations contained in Paragraph 30. Defendant denies the allegations contained in Paragraph 31. c. Contacts in the United States Through an Agent

32.

Defendant denies the allegations contained in Paragraph 32. General Jurisdiction and Venue Allegations

33.

Defendant denies the allegations contained in Paragraph 33.

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34.

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

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

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. 38. 39. Defendant denies the allegations contained in Paragraph 38. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in Paragraph 39. 40. 41. Defendant denies the allegations contained in Paragraph 40. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in the first sentence of Paragraph 41. In response to the remaining

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allegations contained in Paragraph 41, Defendant submits that the State Department Report speaks for itself. 42. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in the first two sentences of Paragraph 42. In response to the remaining allegations contained in Paragraph 42, Defendant submits that the State Department Report speaks for itself. 43. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in the first sentence of Paragraph 43. In response to the remaining allegations contained in Paragraph 43, Defendant submits that the State Department Report speaks for itself. 44. 45. Defendant denies the allegations contained in Paragraph 44. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in Paragraph 45. 46. 47. Defendant denies the allegations contained in Paragraph 46. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in the first sentence of Paragraph 47. In response to the remaining allegations contained in Paragraph 47, Defendant submits that the State Department Report speaks for itself. 48. 49. Defendant denies the allegations contained in Paragraph 48. Defendant denies the allegations contained in the first sentence of Paragraph 49.

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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50. 51.

Defendant denies the allegations contained in Paragraph 50. 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 52. 53. Defendant denies the allegations contained in Paragraph 52. 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. 54. 55. Defendant denies the allegations contained in Paragraph 54. In response to the allegations contained in Paragraph 55, Defendant admits that

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. 57. 58. Defendant denies the allegations contained in Paragraph 57. 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 contained in Paragraph 58. 59. 60. 61. 62. 63. 64. Defendant denies the allegations contained in Paragraph 59. Defendant denies the allegations contained in Paragraph 60. Defendant denies the allegations contained in Paragraph 61. Defendant denies the allegations contained in Paragraph 62. Defendant denies the allegations contained in Paragraph 63. Defendant denies the allegations contained in the first sentence of Paragraph 64.

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. 65. In response to the allegations contained in Paragraph 65, Defendant admits that

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. 66. 67. Defendant denies the allegations contained in Paragraph 66. In response to the allegations contained in Paragraph 67, Defendant admits that

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. 68. In response to the allegations contained in Paragraph 68, Defendant admits that

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

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ordered to do so by Defendant. Defendant is without knowledge or information sufficient to admit or deny the remaining allegations contained in Paragraph 68. 69. In response to the allegations contained in Paragraph 69, Defendant admits that

Plaintiff Toledo 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 69. 70. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in Paragraph 70. 71. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in Paragraph 71. 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. 73. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in Paragraph 73. 74. In response to the allegations contained in Paragraph 74, Defendant admits that

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

allegations contained in Paragraph 75.

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76.

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

allegations contained in the first sentence of Paragraph 76. Defendant denies the remaining allegations contained in Paragraph 76. 77. 78. Defendant denies the allegations contained in Paragraph 77. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in Paragraph 78. 79. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in Paragraph 79. 80. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in Paragraph 80. 81. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in Paragraph 81. 82. 83. Defendant denies the allegations contained in Paragraph 82. 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. 84. Defendant is without knowledge or information sufficient to admit or deny the

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. 85. 86. 87. 88. Defendant denies the allegations contained in Paragraph 85. Defendant denies the allegations contained in Paragraph 86. Defendant denies the allegations contained in Paragraph 87. In response to the allegations contained in Paragraph 88, Defendant admits that it

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. 89. 90. 91. Defendant denies the allegations contained in Paragraph 89. Defendant denies the allegations contained in Paragraph 90. Defendant denies the allegations contained in the first sentence of Paragraph 91.

In response to the allegations contained in the second sentence of Paragraph 91, Defendant 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. 94. 95. 96. 97. Defendant denies the allegations contained in Paragraph 94. Defendant denies the allegations contained in Paragraph 95. Defendant denies the allegations contained in Paragraph 96. 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. 99. 100. 101. 102. 103. Defendant denies the allegations contained in Paragraph 99. Defendant denies the allegations contained in Paragraph 100. Defendant denies the allegations contained in Paragraph 101. Defendant denies the allegations contained in Paragraph 102. Defendant is without knowledge or information sufficient to admit or deny the

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

allegations contained in Paragraph 104. 105. Defendant is without knowledge or information sufficient to admit or deny the

allegations contained in Paragraph 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. Defendant denies the allegations contained in Paragraph 106. Defendant denies the allegations contained in Paragraph 107. Defendant denies the allegations contained in Paragraph 108. Defendant denies the allegations contained in Paragraph 109. Defendant denies the allegations contained in Paragraph 110. Defendant denies the allegations contained in Paragraph 111. Defendant denies the allegations contained in Paragraph 112. Defendant denies the allegations contained in Paragraph 113. 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. 115. 116. 117. 118. 119. 120. Defendant denies the allegations contained in Paragraph 115. Defendant denies the allegations contained in Paragraph 116. Defendant denies the allegations contained in Paragraph 117. Defendant denies the allegations contained in Paragraph 118. Defendant denies the allegations contained in Paragraph 119. Defendant denies the allegations contained in Paragraph 120.

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121.

Defendant denies the allegations contained in Paragraph 121. FIRST CLAIM FOR RELIEF (FORCED LABOR)

122.

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

if fully set forth herein. 123. 124. Defendant denies the allegations contained in Paragraph 123. Defendant denies the allegations contained in the first sentence of Paragraph 124.

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. 127. In response to the allegations contained in Paragraph 127, Defendant submits that

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. 128. In response to the allegations contained in Paragraph 128, Defendant submits that

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. 130. Defendant denies the allegations contained in Paragraph 130.

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131. 132. 133. 134.

Defendant denies the allegations contained in Paragraph 131. Defendant denies the allegations contained in Paragraph 132. Defendant denies the allegations contained in Paragraph 133. 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) 135. Defendant realleges and incorporates its responses to Paragraphs 1 through 121 as

if fully set forth herein. 136. 137. 138. Defendant denies the allegations contained in Paragraph 136. Defendant denies the allegations contained in Paragraph 137. Defendant denies the allegations contained in Paragraph 138. THIRD CLAIM FOR RELIEF (Negligence) 139. Defendant realleges and incorporates its responses to Paragraphs 1 through 121 as

if fully set forth herein. 140. 141. 142. Defendant denies the allegations contained in Paragraph 140. Defendant denies the allegations contained in Paragraph 141. Defendant denies the allegations contained in Paragraph 142. FOURTH CLAIM FOR RELIEF (Racketeer Influenced and Corrupt Organizations Act)

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143.

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

if fully set forth herein. 144. 145. 146. 147. 148. 149. Defendant admits the allegations contained in Paragraph 144. Defendant denies the allegations contained in Paragraph 145. Defendant denies the allegations contained in Paragraph 146. Defendant denies the allegations contained in Paragraph 147. Defendant denies the allegations contained in Paragraph 148. Defendant denies the allegations contained in the first sentence of Paragraph 149.

In response to the allegations contained in the second sentence of Paragraph 149, Defendant submits that 18 U.S.C. § 1589 speaks for itself. 150. Defendant denies the allegations contained in the first sentence of Paragraph 150.

In response to the allegations contained in the second sentence of Paragraph 150, Defendant submits that 18 U.S.C. § 1590 speaks for itself. 151. 152. 153. 154. 155. 156. 157. Defendant denies the allegations contained in Paragraph 151. Defendant denies the allegations contained in Paragraph 152. Defendant denies the allegations contained in Paragraph 153. Defendant denies the allegations contained in Paragraph 154. Defendant denies the allegations contained in Paragraph 155. Defendant denies the allegations contained in Paragraph 156. 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 mtriggs@proskauer.com Stephanie Reed Traband Florida Bar No. 0158471 straband@proskauer.com

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

Service List Case No. 06-22128-CIV-KING/GARBER United States District Court, Southern District of Florida Seth Miles sem@grossmanandroth.com 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 johnandresthornton@hotmail.com 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

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7215/20884-001 Current/10852184v4 03/17/2008 10:14 PM

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