Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________
)
ESTATE OF ESTHER KLIEMAN, et al., ) )
Plaintiffs, )
) v. ) Civil Action No. 04-1173 (PLF) )
PALESTINIAN AUTHORITY, et al., ) )
Defendants. )
_________________________________________ )
OPINION
Esthеr Klieman, an American schoolteacher, was killed in a terrorist attack in Israel in 2002. Her estate, survivors, and heirs have brought this action under Section 2333 of the Antiterrorism Act (“ATA”), 18 U.S.C. §§ 2331 et seq. , and various tort theories, against the Palestinian Authority (“PA”) and the Palestine Liberation Organization (“PLO”), as well as several other organizations and individuals alleged to have engaged in or otherwise supported terrorist activities in or near Israel. The PA and the PLO are the sole remaining defendants in this case.
In 2006, the Court determined that it could exercise general personal jurisdiction
over the PA and PLO based on their “continuous and systematic” contacts with the United
States. The Court denied defendants’ motion for reconsideration of that decision in 2008. In
light of the Supreme Court’s recent decision in Daimler AG v. Bauman,
I. BACKGROUND
On March 24, 2002, terrorists with machine guns attacked a public bus near Neve Tzuf, an Israeli settlement in the West Bank. Esther Klieman, an American schoolteacher, was shot and killed. In the aftermath, Al Aqsa Martyrs Brigade, an organization designated as a *3 Foreign Terrorist Organization by the U.S. Department of State, claimed responsibility for the attack. Compl. ¶ 32. By the time plaintiffs’ complaint was filed in 2004, two individuals — Tamar Rassem Salim Rimawi and Hussam Abdul-Kader Ahmad Halabi — had been arrested, tried, and convicted of Klieman’s murder in an Israeli court. Id. ¶ 28. A third suspect, Ahmed Hamad Rushdie Hadib, had been arrested and indicted, while a fourth suspect, Annan Aziz Salim Hashash, remained at large. Compl. ¶ 30.
Klieman’s estate, survivors, and heirs brought this action against thirteen individuals and organizations under Section 2333 of the ATA, 18 U.S.C. §§ 2331 et seq. , and various tort theories. The original defendants can be broken into four categories: (1) the four alleged perpetrators named above; (2) three additional individuals allegedly involved in the attack; (3) four organizations, Al Aqsa, Fatah, Tanzim, and Force 17, accused of directly supporting the attack; and (4) the Palestinian Authority and the Palestine Liberation Organization. Plaintiffs accuse the PA and the PLO of not only failing to take effective measures to prevent terrorist attacks, but of providing weapons, funding, and other support to the organizations and individuals responsible for the attack. Compl. ¶¶ 31-49.
The procedural history of this case spans a decade. It is summarized here as
relevant. On March 30, 2006, the Court issued an Opinion and Order denying defendants’ first
motion to dismiss and granting plaintiffs’ partial motion for summary judgment. See Estate of
Klieman v. Palestinian Auth.,
Defendants then filed a third motion to dismiss based on insufficient service of
process, as well as a motion for reconsideration of the Court’s personal jurisdiction decision. On
April 18, 2008, the Court found that only the PA and the PLO had been properly served, and it
therefore dismissed all other defendants from the case. See Estate of Klieman v. Palestinian
Auth.,
Defendants have filed another motion for reconsideration of this Court’s personal
jurisdiction decisions in light of the Supreme Court’s recent decision in Daimler AG v. Bauman,
II. DISCUSSION
A. Motions for Reconsideration
Motions for reconsideration are not specifically addressed in the Federal Rules of
Civil Procedure. While the most analogous rule is Rule 60, which provides relief from a final
judgment or order, motions to reconsider interlocutory orders are not governed by Rule 60(b),
but rather, such determinations “are within the discretion of the trial court.” Keystone Tobacco
Co. v. U.S. Tobacco Co.,
Defendants argue that Daimler AG v. Bauman,
Prior to the Supreme Court’s decisions in Goodyear and Daimler, courts in this
Circuit exercised general jurisdiction over a foreign corporation if its “contacts with the District
[were] so continuous and systematic that it could [have] foresee[n] being haled into a court in the
District of Columbia.” AGS Int’l Servs. S.A. v. Newmont USA Ltd.,
B. Waiver of the Personal Jurisdiction Defense The Court must first address рlaintiffs’ threshold argument that defendants have waived their personal jurisdiction defense by failing to file a motion for reconsideration immediately after the Supreme Court first articulated the “at home” test in Goodyear. The Court concludes that they have not.
Defendants persistently have objected to personal jurisdiction throughout this case, including by filing two motions near the commencement of the action and a prior motion for reconsideration. This Court issued decisions in 2006 and in 2008 denying defendants’ motions and holding that it could exercise personal jurisdiction over the defendants. Plaintiffs therefore had ample notice of defendants’ objection to personal jurisdiction throughout the litigation of this case. [2] And, unlike a responsive pleading or a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, motions for reconsideration may be filed at any time prior to the final judgment. See F ED . R. C IV . P. 54(b). Tellingly, the Court has not *8 identified, and plaintiffs do not cite, any case denying a motion for reconsideration because of a delay in identifying intervening case law.
Furthermore, defendants have not acted with undue delay nor have the plaintiffs
been unfairly prejudiced by any delay. Although the “at home” language first appeared in the
Supreme Court’s 2011 decision in Goodyear, the reach of this language was not immediately
clear. See US ex rel. Barko v. Halliburton Co.,
C. Personal Jurisdiction
1. Legal Standard
The plaintiffs bear the burden of establishing a
prima facie
showing that the Court
has personal jurisdiction over the PA and the PLO. See Mwani v. Bin Laden,
In determining if plaintiffs have met their burden, the Court need not accept all of
the plaintiffs’ allegations as true. Jung v. Assoc. of Am. Med. Colls.,
Plaintiffs assert that defendants have sufficient contacts with the United States for
purposes of establishing personal jurisdiction under Rule 4(k)(2) of the Federal Rules of Civil
Procedure, which functions as a federal long-arm statute. See Simon v. Repub. of Hungary,
No. 10-1770,
For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if: (A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws.
F ED . R. C IV . P. 4(k)(2). This Rule thus “allows a district court to acquire jurisdiction over a
foreign defendant which has insufficient contacts with any single state but has ‘contacts with the
United States as a whole.’” In re Vitamins Antitrust Litig.,
The Due Process Clause of the Fifth and Fourteenth Amendments requires that, in
order to be subject to the jurisdiction of a court, the defendant must “have certain minimum
contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’” Int’l Shoe Co. v. State of Wash., Office of
Unemployment Comp. & Placement,
2. General Personal Jurisdictiоn
On reconsidering defendants’ U.S. contacts in light of Daimler, the Court
concludes that it cannot exercise general personal jurisdiction over the PA and the PLO.
[3]
As
*11
noted in this Court’s 2008 decision, plaintiffs allege that the PA and the PLO engage in
speechmaking and participate in other public appearances in the United States, as well as public
relations activities associated with the D.C. office of the PLO Mission to the United States.
Memorandum Opinion and Order at 3, April 24, 2008 [Dkt. No. 85]. In addition, this Court
considered the PA’s and PLO’s contacts identified in two other cases, Ungar v. Palestinian
Auth.,
In Goodyear and in Daimler, the Supreme Court clarified that, for general
personal jurisdiction, “minimum contacts” are those “so continuous and systematic as to render
[the foreign entity] essentially
at home
in the forum State.” Daimler AG v. Bauman, 134 S. Ct.
at 754, 758 n.11 (emphasis added) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown,
*12
including those previously identified by this Court and the decisions it cited, see supra at 10-11
— do not suffice to render the PA and the PLO “essentially at home” in the United States. The
PA is based in the West Bank and the Gaza Strip. See Defs.’ Mot. at 12. Although not
recognized as a sovereign government by the United States, it governs a portion of the West
Bank. See Safra v. Palestinian Auth., No. 14-0669,
[5] Defendants claim, and plaintiffs do not dispute, that the PLO employed approximately 1,300 people at their global embassies, missions, and delegations between 1998 and 2004, but employed no more than twelve staff members at the Washington, D.C. office during that time. See Defs.’ Reрly at 3, 6. According to defendants, the Washington, D.C. PLO office accounted for 0.037 percent of the PA’s total expenditures. Id. at 6.
[6] Defendants assert that many of these contacts are exempted for personal
jurisdiction purposes under the “government contacts” exception. See Defs.’ Supp. Mem. at 3
(“[U]nder the well-established government contacts exception, Plaintiffs cannot rely on speech
intended to lobby the federal government as a jurisdictional contact.”); see also Alkanani v.
Aegis Def. Servs.,
The Court disagrees with the recent application of Daimler to the Palestinian
Authority in Sokolow v. Palestine Liberation Org., No. 04-397,
3. Specific Personal Jurisdiction
Where general jurisdiction is unavailable, a court nevertheless may hear a suit that
“aris[es] out of or relate[s] to the defendant’s contacts with the forum.” Helicopteros Nacionales
de Colombia, S.A. v. Hall,
In their opposition to defendants’ motion for reconsideration, plaintiffs assert that the March 24, 2002 attack “arises out of” defendants’ contacts with the United States. See Pls.’ Opp. at 26-33. But because the Court had difficulty discerning the precise nature of this asserted connection, the Court directed the plaintiffs to file a supplemental memorandum before oral argument clearly explaining their theory of specific jurisdiction and permitted defendants to respond. See Memorandum Opinion and Order, June 27, 2014 [Dkt. No. 253]. Upon careful consideration of the plaintiffs’ arguments and supplemental papers, the Court concludes that it may not exercise specific jurisdiction in this case.
There appear to be three facets to plaintiffs’ theory of specific jurisdiction.
First
,
plaintiffs assert that, while engaged in the terror campaign in Israel, defendants simultaneously
conducted a publicity campaign in the United States intended to pressure the United States
government to persuade Israel to withdraw from Gaza and the West Bank. The defendants’
alleged support for Ms. Klieman’s attackers “relates” to defendants’ activities in the United
States because both activities were motivated by the same political goal. See Pls.’ Supp. Mem.
*15
at 6 (‘[I]t is not necessary that the terrorist attack which killed Esther was
caused by
the
Defendants’ U.S. contacts to assert specific jurisdiction; both the U.S. contacts and Defendants’
terrorism result from the same cause: the PA/PLO’s political goals.”). Plaintiffs’ theory is
tenuous at best, and this broad reading of the phrase “relates to” has no support in the relevant
case law. Courts typically require that the plaintiff show some sort of causal relationship
between a defendant’s U.S. contacts and the episode in suit. See Walden v. Fiore, 134 S. Ct. at
1121 (“For a State to exercise jurisdiction consistent with due process, the defendant’s suit-
related conduct must create a substantial connection with the forum State.”); Alkanani v. Aegis
Def. Servs., LLC,
Second
, plaintiffs argue that defendants supported terrorists, such as those
individuals and organizations behind the March 2002 attack, in order to persuade U.S.
policymаkers to pressure Israel to withdraw from the contested areas. See Pls.’ Supp. Mem.
*16
at 4-6. Plaintiffs’ proposed narrative is difficult to follow; they appear to speculate that the PA
and the PLO believed that American policymakers would blame Israel for increased terrorist
attacks by Palestinian organizations and thus pressure Israel to withdraw from contested areas.
See id. Plaintiffs argue that defendants’ conduct therefore was “purposefully directed” at the
United States. See, e.g., Mwani v. bin Laden,
Plaintiffs’ theory, however, lacks plausibility and is divorced from the factual allegations in the complaint. Plaintiffs’ complaint does not contain any allegations that the PA and PLO supported terrorist attacks to cause the United States to pressure Israel to withdraw from contested areas. And plaintiffs’ new theory is undermined by the allegation that the United States government, rather than blame Israel for the attacks, “repeatedly demanded from [d]efendants . . . PA and PLO that they take effective measures to prevent every terrorist attack by” the individuals responsible for Esther Klieman’s death. Cоmpl. ¶ 38. Moreover, despite the fact that discovery has been ongoing for many years, plaintiffs do not point to any evidence supporting their theory, nor do they suggest that jurisdictional discovery would reveal facts to support this theory. See Pls.’ Supp. Mem. at 10.
Third
, plaintiffs argue that specific personal jurisdiction is proper because “injury
to Americans was a foreseeable result” of defendants’ conduct abroad. See Pls.’ Supp. Mem. at
8. Such a foreseeability test has been rejected by the Supreme Court repeatedly, and most
recently in Walden v. Fiore, where the Court held that a defendant’s actions outside of the forum
do not create sufficient contacts with the forum simply becаuse the defendant directed his
*17
conduct at plaintiffs that he knew were residents of the forum state. Walden v. Fiore, 134 S. Ct.
at 1125 (“Such reasoning improperly attributes a plaintiff’s forum connections to the defendant
and makes those connections ‘decisive’ in the jurisdictional analysis.”); see also World-Wide
Volkswagen Corp. v. Woodson,
Plaintiffs’ attempt to analogize this case to Calder v. Jones,
*18
D. Plaintiffs’ Request for Jurisdictional Discovery
Plaintiffs request jurisdictional discovery to “demonstrate that the terrorist attack
in this case . . . appeared to be intended to influence the policy of the United States and Israeli
governments in favor of acceding to Defendants’ political goals and demands.” See Pls.’ Opp.
at 32. Such jurisdictional discovery “lies within the district court’s discretion,” Goodman
Holdings v. Rafidain Bank,
Plaintiffs seek the following information in jurisdictional discovery: (1) The extent of Defendants’ activities within the United States and this jurisdiction to attempt to influence the foreign policy and public opinion in the United States to pressure Israel to change its public policies vis-à-vis the PA, including, but not limited to, information on the consultаnts, lobbyists and other professionals retained for this purpose.
(2) The financial investment of the Defendants’ commercial contracts
with US companies which allow the Defendants to raise revenue in
the United States to support the operating budgets of the Defendants,
which funded the joint public relations and terrorism campaign. As
with a sufficient nexus with the United States. See, e.g., In re Terrorist Attacks on September
11, 2001,
Pls.’ Supp. Mem. at 10.
Even if the plaintiffs did obtain any such evidence through additional discovery
— discovery that is limited to seeking information about defendants’ public advocacy and
fundraising activities in the Unitеd States — the plaintiffs would be unable to meet their burden
of showing either general or specific personal jurisdiction under Daimler and Walden. See Safra
v. Palestinian Auth.,
III. CONCLUSION
For the foregoing reasons, defendants’ motion for reconsideration of the 2006 and 2008 interlocutory orders оn personal jurisdiction will be granted. In light of the intervening change in law, the Court concludes that it cannot exercise general jurisdiction over the PA and the PLO because their contacts with the United States are not so continuous or systematic as to render them “essentially at home” in this forum. The Court also finds that it cannot exercise specific jurisdiction over the defendants because the suit does not arise out of or relate to defendants’ contacts with the United States. The PA and the PLO therefore will be dismissed from this case pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Because the PA and the PLO were the sole remaining defendants, this case will be dismissed with prejudice and all currently pending motions will be dеnied as moot. An Order consistent with this Opinion will issue this same day.
/s/________________________ PAUL L. FRIEDMAN DATE: March 3, 2015 United States District Court
Notes
[1] The papers considered in connection with the pending motion include: Defendants’ second motion to dismiss for lack of jurisdiction (“Defs.’ Second Mot. to Dismiss”) [Dkt. No. 55]; defendants’ motion for reconsideration of decision on personal jurisdiction (“Defs.’ First Recons. Mot.”) [Dkt. No. 77]; defendants’ motion for reconsideration of 2006 and 2008 orders on personal jurisdiction (“Defs.’ Mot.”) [Dkt. No. 233]; plaintiffs’ memorandum in opposition to defendants’ second motion for reconsideration (“Pls.’ Opp.”) [Dkt. No. 240]; defendants’ reply to plaintiffs’ memorandum in opposition to defendants’ second motion for reconsideration (“Defs.’ Reply”) [Dkt. No. 244]; plaintiffs’ notice of supplеmental authority [Dkt. No. 247]; defendants’ response to plaintiffs’ notice of supplemental authority [Dkt. No. 248]; plaintiffs’ second notice of supplemental authority [Dkt. No. 250]; plaintiffs’ supplemental brief in opposition to defendants’ second motion for reconsideration (“Pls.’ Supp. Mem.”) [Dkt. No. 256]; defendants’ response to plaintiffs’ supplemental brief (“Defs.’ Supp. Mem.”) [Dkt. No. 257]; defendants’ supplemental brief on U.S. fundraising as a basis for specific personal jurisdiction (“Defs.’ Supp. Mem. on Fundraising”) [Dkt. No. 260]; plaintiffs’ supplemental brief in response to defendants’ supplemental brief on U.S. fundraising as a basis for specific personal jurisdiction (“Pls.’ Supp. Mem. on Fundraising”) [Dkt. No. 261]; plaintiffs’ third notice of supplemental authority [Dkt. No. 265]; defendants’ resрonse to plaintiffs’ third notice of supplemental authority [Dkt. No. 266]; plaintiffs’ response to defendants’ response to plaintiffs’ third notice of supplemental authority [Dkt. No. 267]; plaintiffs’ fourth notice of supplemental authority [Dkt. No. 270]; defendants’ response to plaintiffs’ fourth notice of supplemental authority [Dkt. No. 272]; plaintiffs’ fifth notice of supplemental authority [Dkt. No. 273]; defendants’ response to plaintiffs’ fifth notice of supplemental authority [Dkt. No. 275]; plaintiffs’ response to defendants’ response to plaintiffs’ fifth notice of supplemental authority [Dkt. No. 277]; plaintiffs’ sixth notice of supplemental authority [Dkt. No. 279]; and defendants’ response to plaintiffs’ sixth notice of supplemental authority [Dkt. No. 280].
[2] Judge Kessler’s recent dеcision finding the PA and the PLO waived personal
jurisdiction in another pending case is inapposite because the PA and the PLO failed to move to
dismiss the case for lack of personal jurisdiction until after the conclusion of discovery and
summary judgment briefing. See Gilmore v. Palestinian Interim Self-Gov’t Auth., No. 01-0853,
[3] Plaintiffs also claim that the Court should exercise general jurisdiction because
plaintiffs served defendants’ agents, and “serving a suitable agent ‘doing business’ in the
jurisdiction” has been used to uphold general jurisdiction. Pls.’ Opp. at 17. But personal
jurisdiction requires
both
proper service and minimum contacts that comport with due process;
proper service alone is insufficient to meet the due process requirements. Mwani v. bin Lаden,
[4] Defendants’ alleged contacts — Supreme Court said . . . ‘[b]efore a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant.’”).
[4] The plaintiffs argue that Goodyear and Daimler are not controlling because both
cases were decided under the Fourteenth Amendment. See Pls.’ Opp. at 10-13. The minimum
contacts analysis, however, is the same under the Fifth Amendment and the Fourteenth
Amendment. See, e.g., Securities and Exchange Commission v. Straub,
[7] Related to this argument is plaintiffs’ suggestion at oral argument that defendants had engaged in U.S.-based fundraising. Following oral argument in this case, therefore, the Court ordered supplemental briefing regarding U.S. fundraising as a basis for specific personal jurisdiction. Order at 2, July 28, 2014 [Dkt. No. 258]. Having reviewed the supplemental filings, the Court agrees with defendants that plaintiffs have not alleged, provided any prima facie showing, nor developed any facts through discovery that either the PA or the PLO engages in fundraising in the United States. See Defs.’ Supp. Mem. on Fundraising at 2-5. Moreover, defendants prоvided a declaration from the head of the PLO’s U.S. mission office attesting to the absence of any fundraising activities. Id. at 2 (citing Declaration of Ambassador Maen Areikat ¶ 11 [Dkt. No. 244-2]).
[8] The Court recognizes plaintiffs’ concern that this holding may appear inconsistent
with the aims of the Antiterrorism Act, which was designed to ensure that Americans harmed by
international terrorist acts would have an adequate forum for civil actions against the responsible
entities. See Goldberg v. UBS AG,