Reuven Gilmore v. Palestinian Interim Self-Government Authority
843 F.3d 958
| D.C. Cir. | 2016Background
- Esh Kodesh Gilmore, a U.S. national and security guard in East Jerusalem, was killed in a shooting on October 30, 2000; no Israeli prosecution resulted.
- Gilmore’s estate and family sued the Palestinian Authority (PA) and Palestine Liberation Organization (PLO) under the Anti-Terrorism Act and common law in 2001; PA/PLO initially defaulted but later moved to vacate defaults twice.
- District Court vacated defaults (imposing mitigation: fees, testimony stipulation, $1M bond), allowed extended discovery, and received a late privilege log disclosing 25 pages from PA intelligence (GIS).
- District Court reviewed the GIS pages in camera with a sealed ex parte ten-page memorandum and denied Appellants’ motion to compel production or unseal the memo.
- On summary judgment the District Court excluded Appellants’ proffered evidence (various Israeli government web pages, a book passage, custodial statements, trial testimony, and expert report) as inadmissible hearsay or unreliable expert opinion and entered judgment for PA/PLO.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction | Appellants: court had jurisdiction over PA/PLO | PA/PLO: constitutional personal-jurisdiction defense preserved by earlier FSIA motion | Court: PA/PLO waived constitutional personal-jurisdiction challenge by not raising it pre-answer; waived under Foremost-McKesson and Chatman-Bey principles. |
| Vacatur of defaults | Appellants: defaults were willful and vacatur improper given lengthy nonresponse | PA/PLO: equitable considerations and meritorious defenses justify vacatur | Court: affirmed vacatur; district court did not abuse discretion applying Keegel factors and broader equitable considerations; federal policy favors trial on merits. |
| Ex parte in camera review of intelligence materials | Appellants: ex parte memo and sealed review violated due process | PA/PLO: secrecy and foreign-policy sensitivity required ex parte context to aid court review | Court: ex parte/in camera review permissible in extraordinary circumstances; here justified by sensitive foreign-intelligence context; due process not violated. |
| Compelled production / scope of discovery (Rule 26) | Appellants: GIS materials were discoverable and PA/PLO waived privileges | PA/PLO: production would provide little benefit and impose substantial foreign-policy and confidentiality burdens | Held: District Court properly balanced Rule 26(b) factors; documents had little likely benefit and burden outweighed benefit—no abuse of discretion. |
| Admissibility of proffered evidence at summary judgment | Appellants: web pages, book excerpt, custodial statements, trial testimony, and expert report established link to Halawa/PA | PA/PLO: evidence is hearsay, beyond exceptions, or unreliable expert opinion | Court: excluded the evidence as inadmissible hearsay or unreliable expert methodology; without admissible proof linking PA/PLO to murder, summary judgment for defendants affirmed. |
Key Cases Cited
- Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422 (forum jurisdiction/order of jurisdictional analysis)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (must resolve jurisdiction before merits when appropriate)
- Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438 (FSIA defense does not preserve separate constitutional personal-jurisdiction objection)
- Chatman-Bey v. Thornburgh, 864 F.2d 804 (Rule 12 personal-jurisdiction waiver principles)
- Daimler AG v. Bauman, 571 U.S. 117 (limits on general jurisdiction referenced in jurisdictional-waiver discussion)
- Whelan v. Abell, 48 F.3d 1247 (policy favoring trial over default judgments)
- Keegel v. Key W. & Caribbean Trading, 627 F.2d 372 (factors for vacating entries of default)
- United States v. Zolin, 491 U.S. 554 (in camera review of potentially privileged materials)
- Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court, 483 U.S. 522 (weighing foreign/state interests in discovery)
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (court’s gatekeeping role for expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (flexible reliability inquiry for expert methodology)