Gilmore v. Palestinian Interim Self-Government Authority
8 F. Supp. 3d 9
D.D.C.2014Background
- Plaintiffs (family and estate of Esh Kodesh Gilmore) sued the Palestinian Authority (PA) and PLO under the Anti‑Terrorism Act and related common‑law claims after Gilmore was killed in East Jerusalem in 2000.
- Defendants initially defaulted, successfully moved to vacate defaults, and twice litigated jurisdictional and merits issues over many years; discovery and summary judgment briefing occurred before the instant motion.
- Defendants moved for judgment on the pleadings (Feb. 10, 2014) arguing lack of personal jurisdiction under the Supreme Court’s “at home” general‑jurisdiction standard and absence of specific jurisdiction.
- Plaintiffs argued Defendants waived any personal‑jurisdiction defense by litigating the case on the merits for over a decade and also disputed the applicability of Daimler to foreign governmental entities.
- The Court concluded Defendants waived their personal‑jurisdiction defense (both by omission from early Rule 12 motion and by untimely assertion after Goodyear) and denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether personal jurisdiction defense waived | Defense was waived because Defendants litigated merits for years and did not timely raise jurisdiction | Defense was preserved or only became available after Daimler; thus not waived | Waiver found: omitted from initial Rule 12 motion and not timely raised after Goodyear/Daimler; defense waived |
| Applicability of the "at home" standard to PA/PLO | Plaintiffs contended Goodyear/Daimler may not apply or need not be reached because waiver dispositive | Defendants argued Daimler (and Goodyear) limit general jurisdiction; they lack "at home" contacts | Court did not reach merits of applicability because waiver resolved the motion |
| Timeliness of asserting new jurisdictional theory after Goodyear | Plaintiffs: Goodyear made the theory available in 2011; defendants waited too long to assert it | Defendants: Daimler was the game‑changer in 2014, so challenge only cognizable then | Court: Goodyear (2011) announced the "at home" standard; defendants failed to promptly assert the defense after Goodyear |
| Effect of prior filings and conduct on waiver | Plaintiffs: extensive merits litigation and prior defaults constitute waiver | Defendants: prior filings and later Answer preserved jurisdictional challenge | Court: prior omissions plus prolonged merits litigation and late motion show waiver |
Key Cases Cited
- Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinée, 456 U.S. 694 (1982) (personal‑jurisdiction is an individual right that may be waived)
- Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) (general jurisdiction only when defendant is "essentially at home" in forum)
- Daimler AG v. Bauman, 571 U.S. 117 (2014) (reinforces Goodyear’s "at home" standard for general jurisdiction)
- Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165 (1939) (defenses can be waived by failure to assert them seasonably or by conduct)
- Chatman‑Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988) (Rule 12(g)/(h) waiver principles)
- Democratic Republic of Congo v. FG Hemisphere Assoc., LLC, 508 F.3d 1062 (D.C. Cir. 2007) (waiver found after extensive post‑default litigation)