Fuld v. The Palestine Liberation OrganizationFuld v. The Palestine Liberation Organization
Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MIRIAM FULD et al., :
:
Plaintiffs, :
: 20-CV-3374 (JMF) -v- : : OPINION AND ORDER
THE PALESTINE LIBERATION ORGANIZATION : et al., :
:
Defendants. :
:
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JESSE M. FURMAN, United States District Judge:
The Due Process Clauses of the Fifth and Fourteenth Amendments have long been interpreted to mean that a party cannot be subjected to the jurisdiction of a forum’s courts unless the party has certain minimum contacts with the forum. Courts have recognized three independent bases for such “personal jurisdiction”: first, general jurisdiction, when the defendant’s affiliations with the forum in which suit is brought are so constant and pervasive as to render it essentially at home in the forum; second, specific jurisdiction, when there is a sufficient connection between the underlying controversy and the forum; and third, a defendant’s knowing and voluntary consent, whether express or implied, to suit in the forum.
To date, courts have held that these bases are insufficient to sustain lawsuits brought by family members of American victims of terrorist attacks in Israel and the occupied territories under the Anti-Terrorism Act of 1992 (“ATA”), 18 U.S.C. § 2331 et seq. , against the Palestine Liberation Organization (“PLO”) and the Palestinian Authority (“PA”). In 2019, Congress responded to these rulings by enacting the Promoting Security and Justice for Victims of Terrorism Act (“PSJVTA”), Pub. L. No. 116-94, div. J, tit. IX, § 903, 133 Stat. 3082, which includes innovative provisions intended to ensure that such lawsuits are not dismissed for want of personal jurisdiction. Specifically, the statute provides that the PLO and PA would be “deemed to have consented to personal jurisdiction” in any case brought under the ATA if, after a date certain, they engaged in specified conduct — conduct in which they had long engaged.
The novel question presented in this case — brought by the family members of a Jewish American killed in a 2018 terrorist attack in Gush Etzion, a settlement located in the West Bank, against the PLO and the PA for their alleged roles in encouraging and supporting the attack — is whether this “deemed consent” jurisdiction is consistent with the requirements of due process. For the reasons that follow, the Court concludes that it is not. In brief, Congress cannot, consistent with the Constitution, simply decree that any conduct, without regard for its connections to the United States generally or to litigation in the United States specifically, signals a party’s intent to submit to the jurisdiction of a United States court. To hold otherwise would effectively mean that there are no constitutional limitations on the exercise of personal jurisdiction as a legislature could simply create such jurisdiction out of whole cloth by deeming any conduct — even, for example, the conduct that gives rise to the cause of action itself — to be “consent.” The Court cannot and will not acquiesce in what amounts to a legislative sleight of hand at the expense of a fundamental constitutional right and, thus, is compelled to grant the PLO’s and PA’s motion to dismiss for lack of personal jurisdiction.
BACKGROUND
Plaintiffs in this case are the wife and four children of Ari Yoel Fuld, an American citizen who, on September 16, 2018, was brutally stabbed to death outside a mall in Gush Etzion, a settlement located in the West Bank. See ECF No. 21 (“Am. Compl.”), ¶¶ 106-110. Plaintiffs allege, on information and belief, that Khalil Yousef Ali Jabarin, the murderer, targeted Fuld because he was a Jewish American. See id. ¶ 107; see also id. ¶ 101 (alleging, on information and belief, that Jabarin “decided to become . . . a ‘martyr[]’ and kill Jews”). In this suit, however, they do not seek relief from Jabarin (who was apprehended by Israeli authorities after the murder). Instead, they seek hundreds of millions of dollars in damages from the PA, which was established by the 1993 Oslo Accords to exercise interim governance authority for the Palestinian people in Gaza and the West Bank, and the PLO, which has been recognized by the United Nations as the representative of the Palestinian people, on the ground that they “encouraged, incentivized, and assisted” the attack on Fuld. Id. ¶ 4. They do so principally pursuant to the ATA, as amended by the PSJVTA. See id. ¶ 1.
Congress enacted the ATA in 1992 in an effort “to develop a comprehensive legal response to international terrorism.” H.R. Rep. No. 102-1040, at 5 (1992) (“1992 House Report”); see Pub. L. No. 102-572, § 1003(a), 106 Stat. 4506, 4521-24 (1992) (adding 18 U.S.C. §§ 2331, 2333-2338). The statute created a civil damages remedy for United States nationals harmed by an act of international terrorism committed by a foreign terrorist organization. See 18 U.S.C. § 2333(a). To the extent relevant here, it permits such United States nationals to sue “any person who aids and abets, by knowingly providing substantial assistance, or who conspires [to commit] an act of international terrorism.” § 2333(d)(2). Among other things, it provides for treble damages plus attorney’s fees and costs. See id. § 2333(a).
In 2004, a group of eleven American families (the “
Sokolow
plaintiffs”) sued the PA and
PLO under the ATA for various terrorist attacks in Israel.
See Waldman v. Palestine Liberation
Org
.,
In the meantime, in
Daimler AG v. Bauman
,
In 2018, Congress responded to these decisions by enacting the Anti-Terrorism
Clarification Act (“ATCA”), Pub. L. No. 115-253, § 4, 132 Stat. 3183, 3184 (adding 18 U.S.C.
§ 2334(e)). Section 4 of the ATCA provided that, “for purposes of any civil action under [the
ATA], a defendant shall be deemed to have consented to personal jurisdiction in such civil action
if,” after January 31, 2019, the defendant “accepts” certain “form[s] of assistance” from the
United States or maintains an office within the United States pursuant to a waiver or suspension
of 22 U.S.C. § 5202 (which otherwise prohibits the PLO from maintaining an office in the
United States).
Id.
Within days of the ATCA’s enactment, the
Sokolow
plaintiffs filed a motion
asking the Second Circuit to recall the mandate in
Waldman I
, arguing that Section 4 of the
ATCA provided personal jurisdiction over the PA and PLO.
See Waldman v. Palestine
Liberation Org
.,
The plaintiffs in these cases filed petitions for certiorari in the Supreme Court. On December 20, 2019, while their petitions were pending, Congress intervened again by passing the PSJVTA. To the extent relevant here, the PSJVTA superseded the personal jurisdiction provisions in the ATCA. It amended the definition of “defendant” to specifically include the PA, the PLO, and their affiliates and successors. Pub. L. No. 116-94, div. J, tit. IX, § 903(b)(5), 133 Stat. 3082, 3083. And it provided two new factual predicates for conduct that will be “deemed” consent to personal jurisdiction for civil actions under the ATA. As amended by the PSJVTA, the ATA now provides, first, that a defendant “shall be deemed to have consented to personal jurisdiction” in ATA cases if, after April 18, 2020, it “makes any payment, directly or indirectly,” to either (i) a payee designated by someone imprisoned for an act of terrorism that injured or killed an American national “if such payment is made by reason of such imprisonment” or (ii) to a family member of an individual who died while committing an act of terrorism that injured or killed an American national “if such payment is made by reason of the death of such individual.” 18 U.S.C . § 2334(e)(1)(A). Second, the Act states that a defendant will be “deemed to have consented to personal jurisdiction” if, after January 4, 2020, it “establishes,” “procures,” or “continues to maintain any office, headquarters, premises, or other facilities or establishments in the United States,” or “conducts any activity while physically present in the United States on behalf of” the PLO or the PA. Id. § 2334(e)(1)(B). That subsection is subject to several exceptions, including, most notably, offices or facilities used “exclusively for the purpose of conducting official business of the United Nations” and “ancillary” activities. Id. § 2334(e)(3).
On April 27, 2020, the Supreme Court granted certiorari to both the
Sokolow
plaintiffs
and the plaintiffs in the D.C. Circuit litigation, vacated the lower court judgments, and remanded
the cases “for further consideration in light of the [PSJVTA].”
Sokolow
,
In the meantime, Plaintiffs filed this suit on April 30, 2020, three days after the Supreme Court vacated and remanded in Sokolow . See ECF No. 1. In their Amended Complaint, Plaintiffs allege that both prongs of the PSJVTA’s personal jurisdiction provisions are satisfied. First, they allege that, after April 18, 2020, Defendants made payments to the families of deceased terrorists who killed or injured Americans and to the designees of terrorists who pleaded guilty or were fairly convicted of killing or injuring Americans. See Am. Compl. ¶¶ 54- 57, 59, 60, 62-67, 114-115. [2] Second, they allege that, after January 4, 2020, Defendants provided consular services in the United States, and conducted press-conferences, distributed informational materials, and engaged the United States media in order to influence American foreign policy and public opinion. See id. ¶¶ 68-90. They further allege that, after January 4, 2020, Defendants maintained offices in the United States that were not used exclusively for the purpose of conducting official United Nations business. See id. ¶¶ 75-95.
After Plaintiffs filed their Amended Complaint, the PA and PLO moved to dismiss for lack of personal jurisdiction and for failure to state a claim. See ECF No. 24. For reasons not relevant here, the Court directed the parties to file supplemental briefs as to the “application and constitutionality of the PSJVTA.” ECF No. 34. Additionally, after confirming that the PA and PLO sought to challenge the constitutionality of the PSJVTA, the Court, pursuant to 28 U.S.C. United States District Court for the District of Columbia. See Est. of Klieman v. Palestinian Auth. , No. 04-CV-1173 (PLF) (D.D.C. Dec. 2, 2020), ECF No. 298.
[2] In fact, Plaintiffs allege, albeit not in the Amended Complaint, that such payments “are a legal entitlement under the PA Prisoners and Ex-Prisoners Law, under which ‘[t]he PA must give every prisoner a monthly salary . . . [p]risoners’ family members shall receive a portion of the prisoners’ salary’ and ‘[t]he prisoner shall appoint an agent to collect his monthly salary or what remains of it.’” ECF No. 29, at 8-9 (quoting Law No. 19 of 2004, Art. 7, as translated and admitted into evidence in Sokolow v. Palestinian Liberation Org. , No. 04-CV-397 (GBD) (S.D.N.Y. May 13, 2015), ECF No. 909-90).
§ 2403(a) and Rule 5.1(b) of the Federal Rules of Civil Procedure, certified the constitutional challenge to the Attorney General of the United States and invited him to intervene. ECF No. 36. The United States subsequently intervened and filed a brief defending the constitutionality of the PSJVTA. ECF No. 52; see ECF No. 53 (“U.S. Mem.”). Thereafter, both sides submitted supplemental briefs responding to the submission of the United States. ECF No. 58 (“Defs.’ Supp. Mem.”); ECF No. 59 (“Pls.’ Supp. Mem.”).
RULE 12(B)(2) STANDARDS
When responding to a Rule 12(b)(2) motion, a “plaintiff bears the burden of establishing
that the court has jurisdiction over the defendant.”
DiStefano v. Carozzi N. Am., Inc
., 286 F.3d
81, 84 (2d Cir. 2001) (per curiam) (internal quotation marks omitted). Where, as here, there has
been no discovery or evidentiary hearing, plaintiffs need only make a
prima facie
showing that
jurisdiction exists.
See, e.g
.,
Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A.
,
DISCUSSION
To make a
prima facie
showing of personal jurisdiction, a plaintiff must demonstrate:
(1) procedurally proper service of process, (2) “a statutory basis for personal jurisdiction that
renders such service of process effective” and (3) that “the exercise of personal jurisdiction . . .
comport[s] with constitutional due process principles.”
In Re LIBOR-Based Financial
Instruments Antitrust Litig.
, — F.4th —, Nos. 17-1569 et al.,
In general, due process — pursuant to both the Fifth and the Fourteenth Amendments,
see
id.
(“[T]he minimum contacts and fairness analysis is the same under the Fifth Amendment and
the Fourteenth Amendment in civil cases.”) — conditions “a tribunal’s authority . . . on the
defendant’s having such ‘contacts’ with the forum State that ‘the maintenance of the suit’ is
‘reasonable . . . ,’ and ‘does not offend traditional notions of fair play and substantial justice.’”
Ford Motor Co.
,
In this case, Plaintiffs make no argument for general or specific jurisdiction, and for good
reasons: Any such argument would be foreclosed by the Second Circuit’s decision in
Waldman I
.
First, to the extent relevant here, the Second Circuit held in
Waldman I
that the neither the PA
nor the PLO can be fairly regarded as “at home” in the United States for purposes of general
jurisdiction; instead, both “are ‘at home’ in
Palestine
, where these entities are headquartered and
from where they are directed.”
See Waldman I
,
Instead of relying on general or specific jurisdiction, Plaintiffs here rely entirely on the
third traditional basis for personal jurisdiction: consent.
See, e.g.
,
J. McIntyre Mach., Ltd. v.
Nicasto
,
Significantly, the reason that consent suffices to support personal jurisdiction is rooted in
the fact that “personal jurisdiction flows from the Due Process Clause.”
Id.
at 694. “The
personal jurisdiction requirement recognizes and protects an individual liberty interest.”
Id.
at
702. If a party consents to appear in a particular forum, whether explicitly or implicitly, it
follows that “maintenance of the suit” in that forum does “not offend traditional notions of fair
play and substantial justice.” (cleaned up). “The actions of the defendant . . . amount to a
legal submission to the jurisdiction of the court.” at 704-05. After all, “[c]onsent, by its very
nature, constitutes ‘approval’ or ‘acceptance.’”
WorldCare Corp. v. World Ins. Co.
, 767 F.
Supp. 2d 341, 355 (D. Conn. 2011) (quoting
Black’s Law Dictionary
definition of “consent” as
“[a]greement, approval, or permission as to some act or purpose, esp. given voluntarily by a
competent person; legally effective assent”). Put differently, like presence in a forum that is
sufficient to support general jurisdiction, consent “reveals circumstances . . . from which it is
proper to infer an intention to benefit from and
thus an intention to submit to the laws of the
forum
.”
J. McIntyre Mach.
,
That inference is reasonable, however, only where the defendant’s statements or conduct
actually signal approval or acceptance. That, in turn, requires the “consent” to meet certain
minimum requirements. Thus, the law generally requires the party’s consent to be “knowing and
voluntary” before it is treated as effective.
See, e.g.
,
In re Asbestos Prods. Liab. Litig. (No. VI)
,
Measured against these standards, the PSJVTA does not constitutionally provide for
personal jurisdiction over Defendants in this case. Congress simply took conduct in which the
PLO and PA had previously engaged — conduct that the Second and D.C. Circuits had held was
insufficient to support personal jurisdiction in
Waldman I
,
Livnat
,
Shatsky
, and
Klieman
— and
declared that such conduct “shall be deemed” to be consent. 18 U.S.C
.
§ 2334(e)(1);
see, e.g.
,
Shatsky
,
That conclusion finds strong support in
College Savings Bank v. Florida Prepaid
Postsecondary Education Expense Board
,
To be sure, College Savings Bank involved the Eleventh Amendment, not the Due Process Clause of either the Fifth or Fourteenth Amendments, and there are differences between the two contexts. Significantly, however, the Court’s reasoning was not specific to any particular constitutional right. To the contrary, the Court explicitly noted that constructive — i.e., “deemed” — consents were “simply unheard of in the context of other constitutionally protected privileges. . . . Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights .” Id. (cleaned up) (latter emphasis added). Underscoring the point, the Court then offered an example involving a very different constitutional right, the Sixth Amendment right to trial by jury:
[I]magine if Congress amended the securities laws to provide with unmistakable clarity that anyone committing fraud in connection with the buying or selling of securities in interstate commerce would not be entitled to a jury in any federal criminal prosecution of such fraud. Would persons engaging in securities fraud after the adoption of such an amendment be deemed to have “constructively waived” their constitutionally protected rights to trial by jury in criminal cases? After all, the trading of securities is not so vital an activity that any one person's decision to trade cannot be regarded as a voluntary choice. The answer, of course, is no. The classic description of an effective waiver of a constitutional right is the intentional relinquishment or abandonment of a known right or privilege. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights. at 681-82 (cleaned up). In short, the principles underlying College Savings Bank are not
specific to the Eleventh Amendment, but rather apply to constitutional rights broadly. And there
is no reason to believe that they apply any less forcefully to the constitutional right at issue here
— the due process right not to be subjected to suit absent sufficient “‘contacts’ with the forum,”
Ford Motor Co.
,
Thus, College Savings Bank all but compels the conclusion that personal jurisdiction is lacking here. Yes, Congress “express[ed] unequivocally its intention that if” either the PLO or PA “takes certain action it shall be deemed to have” consented to suit in an American court. 527 U.S. at 680-81. From that fact, however, “the most that can be said with certainty is that” the PLO and PA have “been put on notice that Congress intends to subject [them] to suits” in the United States. Id. at 681. “That is very far from concluding that” either the PLO or the PA “made an altogether voluntary decision to” submit to such suits. Id. Moreover, the fact that “the asserted basis for” deemed consent jurisdiction in the PSJVTA is “conduct that” the PLO and PA “realistically could choose to abandon” is of no moment. at 684. That fact simply has “no bearing on the voluntariness of the waiver.” Id .
That would be enough, but a pair of recent Second Circuit decisions concerning business
registration statutes provides additional support for the Court’s conclusion that the exercise of
jurisdiction over Defendants here would violate due process.
See Brown v. Lockheed Martin
Corp
.,
Admittedly,
Brown
and
Chen
do not speak directly to the constitutionality of the
PSJVTA. The plaintiffs in both cases argued that the statutes at issue gave rise to general
jurisdiction. Here, by contrast, Plaintiffs and the United States make no such argument, as the
PSJVTA’s jurisdictional provisions are specific to claims against Defendants under the ATA.
Moreover, the statutes at issue in
Brown
and
Chen
were not explicit in deeming registration to be
consent. The PSJVTA, of course, is. In point of fact,
Brown
and
Chen
explicitly left open the
possibility “that a carefully drawn state statute that
expressly
required consent to general
jurisdiction as a condition on a foreign corporation’s doing business in the state, at least in cases
brought by state residents, might well be constitutional,”
Brown
,
Notably, in arguing that the PSJVTA passes constitutional muster, Plaintiffs and the
United States do not dispute that a statute “deeming” certain conduct to be “consent” to personal
jurisdiction must be consistent with due process.
See
U.S. Mem. 7-9; Pls.’ Mem. 13. In their
view, however, to comply with due process, a “deemed consent” statute need only give
defendants “fair warning about what conduct will subject them to personal jurisdiction with
respect to a particular class of claims, and a reasonable period to structure their primary conduct
with some minimum assurance as to where that conduct will and will not render them liable to
suit.” U.S. Mem. 9 (internal quotation marks omitted);
see
Pls.’ Mem. 13.
[7]
If a statute does so,
they argue, a defendant who thereafter engages in the predicate conduct has “knowingly” and
“voluntarily” consented to jurisdiction and the exercise of jurisdiction over such a defendant
the doctrine to have been abandoned.
See, e.g.
,
Fieldcamp v. City of New York
, 242 F. Supp. 2d
388, 391 (S.D.N.Y. 2003) (“[T]he failure to provide argument on a point at issue constitutes
abandonment of the issue.”);
accord Wilmington Tr., N.A. v. 115 Owner LLC
, No. 20-CV-2157
(JMF),
[7] Plaintiffs add that, to pass muster under the Due Process Clause, a deemed consent statute
also has to serve a “legitimate governmental objective” so as to “avoid[] the arbitrary or
irrational exercise of power.” Pls.’ Mem. 13-16 (citing
Sacramento v. Lewis
,
comports with due process. As applied here, Plaintiffs and the United States argue that Defendants knowingly and voluntarily “consented” because they “knew” the activities that would “be deemed consent” to jurisdiction and were given “the opportunity to ‘voluntarily’ choose whether or not to continue such activities and thereby consent to jurisdiction in the courts of the United States.” U.S. Mem. 10; see Pls.’ Supp. Mem. 5. In short, in their view, nothing more than fair notice and an opportunity to conform is required for “deemed consent” to satisfy due process.
The Court cannot agree. Separate and apart from the fact that the argument of Plaintiffs
and the United States is the very one rejected by the Supreme Court in
College Savings Bank
, to
accept it would effectively mean that there are
no
due process limitations on the exercise of
personal jurisdiction. Congress or a state legislature could provide for jurisdiction over
any
defendant for
any
conduct so long as the conduct post-dated enactment of the law at issue. That
is, Congress or the legislature could simply “deem” a substantive violation of the law at issue to
be “consent” and, on that basis, subject any defendant who later committed a violation to
jurisdiction without regard for its “contacts, ties, or relations” with the forum.
Int’l Shoe
, 326
U.S. at 319. Congress, for example, could simply “deem” a substantive violation of the ATA to
mean that a defendant had “consented” to jurisdiction. Or, perhaps more revealingly, a state
legislature could pass a statute declaring that any foreign corporation that distributed vehicles to
in-state dealerships would be “deemed” to have consented to personal jurisdiction in that state —
circumventing the Supreme Court’s holding in
Daimler
.
Congress should not be permitted to circumvent fundamental constitutional rights
through such sleight of hand.
See Frost & Frost Trucking Co. v. R.R. Comm’n
,
Moreover, as the Supreme Court’s reference to the jury trial right in
College Savings
Bank
makes plain, to accept the argument advanced by Plaintiffs and the United States could
(and likely would) have staggering implications beyond the realm of personal jurisdiction. After
all, the concepts of consent and waiver have legal significance with respect to a host of
individual constitutional rights. Law enforcement may conduct a warrantless search on consent.
See, e.g.
,
Schneckloth v. Bustamonte
,
Conspicuously, Plaintiffs and the United States do not cite any case suggesting, let alone
holding, that a legislature may simply “deem” conduct unrelated to actual consent to be consent,
in the personal jurisdiction context or otherwise.
[8]
The closest they come is the Supreme Court’s
decision in
Bauxites
, but
Bauxites
does not bear the weight they put on it. In
Bauxites
, the
district court found that the petitioners had violated various discovery orders relating the
question of personal jurisdiction. Exercising its authority under Rule 37(b)(2)(A) of the Federal
Rules of Civil Procedure, the district court sanctioned the petitioners by deeming the facts that
formed the basis for personal jurisdiction to be established. On appeal, the petitioners argued
that this violated due process because a court “may not create” personal jurisdiction “by judicial
fiat.”
Bauxites
, therefore, stands for the straightforward proposition that where a defendant
voluntarily submits to the jurisdiction of a court for purposes of disputing jurisdiction and then
violates orders with respect to jurisdictional discovery, it does not offend due process to deem
the facts supporting personal jurisdiction to be established. Critically, however, the petitioners’
conduct was related to the litigation itself — in which petitioners had voluntarily appeared (albeit
for the limited purpose of disputing jurisdiction).
See id.
at 706 (“A defendant is always free to
ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on
jurisdictional grounds in a collateral proceeding. By submitting to the jurisdiction of the court
for the limited purpose of challenging jurisdiction, the defendant agrees to abide by that court’s
determination on the issue of jurisdiction.” (citation omitted)). Moreover, the petitioners were
not deemed to have consented to the court’s jurisdiction through their conduct; indeed, the Court
made clear that such a direct sanction would indeed have violated due process.
See
456 U.S. at
706 (citing
Hovey v. Elliott
,
Instead, the petitioners’ conduct in
Bauxites
was sufficient to support a presumption of
fact
— namely, that they had contacts with Pennsylvania — that, in turn, had the
legal
consequence of establishing personal jurisdiction. In other words, the Court blessed a legal
fiction, but only because the fiction was not so far detached from fact.
See id.
at 701 (quoting
Justice Holmes’s opinion in
McDonald v. Mabee
,
Separately, Plaintiffs and the United States fall back on the deference that courts owe to
the political branches with respect to matters of foreign affairs and national security.
See
U.S.
Mem. 10-13, 19; Pls.’ Mem. 14-16. But their argument is unavailing for several reasons. First,
although courts should grant deference to the political branches when it comes to such matters in
light of their constitutionally derived powers and expertise, “concerns of national security and
foreign relations do not warrant abdication of the judicial role. . . . [T]he Government’s authority
and expertise in these matters do not automatically trump the Court’s own obligation to secure
the protection that the Constitution grants to individuals.”
Holder v. Humanitarian L. Project
,
The constitutional limits on the political branches’ exercise of the treaty power
underscore the point. The Constitution explicitly grants the President the “Power, by and with
the Advice and Consent of the Senate to make Treaties.” U.S. Const. art. II, § 2. And treaties,
by definition, implicate foreign relations. Yet, the law is pellucid that “the treaty power cannot
override constitutional limitations respecting individual rights.”
Oneida Indian Nation of N.Y. v.
State of N.Y.
,
Second, and in any event, Plaintiffs and the United States do not cite, and the Court has
not found, any authority for the proposition that the test for personal jurisdiction — which, again,
is an individual constitutional right — varies by context or by the nature of a plaintiff’s claim.
See Livnat
,
In the final analysis, the Court cannot acquiesce in Congress’s legislative sleight of hand
and exercise jurisdiction over Defendants here pursuant to the PSVJTA. A defendant’s knowing
and voluntary consent is a valid basis to subject it to the jurisdiction of a court, but Congress
cannot simply declare anything it wants to be consent. To hold otherwise would let fiction get
the better of fact and make a mockery of the Due Process Clause.
See McDonald
,
CONCLUSION
As in
Waldman I
, the killing of Ari Fuld was “unquestionably horrific” and Plaintiffs’
efforts to seek justice on his and their own behalf are morally compelling.
The Clerk of Court is directed to terminate ECF No. 24, to close this case, and to enter judgment for Defendants.
SO ORDERED. Dated: January 6, 2022 __________________________________
New York, New York JESSE M FURMAN United States District Judge
Notes
[1] The Shatksy and Klieman plaintiffs are also still pursuing their claims in light of the PSJVTA. In conjunction with their litigation in the D.C. Circuit, the Shatsky plaintiffs also filed a “protective action” in this Court. See Shatsky v. Palestine Liberation Org. , No. 18-CV-12355 (MKV) (S.D.N.Y. Jan. 30, 2020), ECF No. 21, at 1. In that proceeding, Defendants have also moved to dismiss for lack of personal jurisdiction, and their motion remains pending. See Shatsky v. Palestine Liberation Org. , No. 18-CV-12355 (MKV) (S.D.N.Y. Aug. 20, 2021), ECF No. 116. Meanwhile, the Klieman plaintiffs are seeking jurisdictional discovery before the
[3] In fact, Defendants all but concede that they did in fact make such payments. See ECF No. 42 (“Defs.’ Mem.”), at 11 (describing Defendants’ “decision to continue engaging in . . . conduct” described by the PSJVTA’s factual prongs); id. at 21 (“Because personal jurisdiction based on either PSJVTA prong would violate due process, there is no need for the Court to determine wither Plaintiffs can satisfy the disjunctive ‘U.S. conduct’ PSJVTA prong in addition to the ‘payment’ prong.” (citations omitted)); Defendants’ Brief Concerning Application of the PSJVTA, Sokolow v. Palestine Liberation Org. , No. 04-CV-397 (GBD) (S.D.N.Y. Jan. 8, 2021), ECF No. 1021, at 2 n.1 (“[T]he Court can assume, without deciding, that Defendants have made at least one payment implicating the PSJVTA’s payments provision.”); see also ECF No. 31, at 3 (Defendants stating that they “incorporate by reference” their brief filed in Sokolow ). By contrast, Defendants do contest Plaintiffs’ allegations that the PSJVTA’s second “deemed consent” prong has been met. See, e.g. , Defs.’ Mem. 21-25; ECF No. 50 (“Defs.’ Reply”), at 7- 10. Because the Court concludes that the PSJVTA’s first prong has been met, it need not decide whether Defendants’ conduct also implicates the second prong.
[4] An argument could be made — although, conspicuously, Plaintiffs do not make it — that
this case is distinguishable from
Waldman I
because here the Amended Complaint alleges, on
information and belief, that the attacker specifically “targeted” the victim “because he was a
Jewish American.” Am. Compl. ¶ 107;
cf. Waldman I
,
[5] Separately, Plaintiffs dispute the proposition that the PLO and PA even have due process rights. See ECF No. 46 (“Pls.’ Mem.”), at 13 n.4. But they acknowledge that that argument is foreclosed by Waldman I and make it only to preserve the issue “for appellate consideration.” Thus, the Court need not and does not address the issue here.
[6] The
Brown
Court noted that Pennsylvania’s registration statute “more plainly advise[d]
the registrant that enrolling in the state as a foreign corporation and transacting business will vest
the local courts with general jurisdiction over the corporation,”
[8] Plaintiffs and the United States both rely on
Wellness International Network
and
Roell v.
Withrow
,
[9] To be sure,
Bauxites
does state that “[t]he actions of the defendant may amount to a legal
submission to the jurisdiction of the court,
whether voluntary or not
.”
[10] Nor is it to say that Defendants are correct in arguing that “‘deemed’ consent to
jurisdiction cannot be squared with Due Process unless there is
reciprocity
,” which they define
as “an express or implied exchange by which a defendant impliedly agrees to jurisdiction in
return for a benefit conferred by the forum,” Defs.’ Mem. 1 (emphasis added). Although there
are cases holding that a defendant’s receipt of a benefit can be deemed to be consent,
see, e.g.
,
Hess v. Pawloski
,