EITAN ELIAHU, DOTAN NEWMAN, R. DAVID WEISSKOPF, ELDAD GIDON, Plaintiffs-Appellants, MICHAEL ZAMANSKY, YAKOV BOSSIRA, DAN SILBERMAN, Plaintiffs, - against - JEWISH AGENCY FOR ISRAEL, NEW ISRAEL FUND, JEWISH FEDERATIONS OF NORTH AMERICA, NA‘AMAT, WOMEN‘S INTERNATIONAL ZIONIST ORGANIZATION, P.E.F. ISRAEL ENDOWMENT FUNDS, INC., TZIPI LIVNI, SHMUEL CHAMDANI, NA‘AMA BOLTIN, MIRIAM DARMONY, EINAT GILEAD-MESHULAM, TOMER MOSKOWITZ, CLANIT BERGMAN, JOHN HAGEE, INTERNATIONAL FELLOWSHIP OF CHRISTIANS AND JEWS, JERUSALEM INSTITUTE OF JUSTICE, CARY SUMMERS, AMERICAN FRIENDS OF BAR-ILAN UNIVERSITY, JEFFREY ROYER, NOA REGEV, ALON SALEH, ZEV GABAI, ARIEL LAGANA, ORIT AVIGAIL YAHALOMI, MICHAEL DUWANI, Defendants-Appellees.
Docket No. 18-244-cv (L); 18-246-cv (Con)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 27, 2019
August Term 2018 (Argued: February 13, 2019)
Appeals from orders of the United States District Court for the Southern District of New York (Pauley, J.), dismissing plaintiffs-appellants’ amended complaint in part for lack of subject matter jurisdiction pursuant to
AFFIRMED.
SAUL ROFFE, Law Offices of Saul Roffe, Esq., Marlboro, New Jersey, for Plaintiffs-Appellants Dotan Newman, R. David Weisskopf, and Eldad Gidon.
Eitan Eliahu, pro se, San Jose, California, for Plaintiff-Appellant Eitan Eliahu.
ROBERT REEVES ANDERSON (John B. Bellinger, III, Stephen K. Wirth, on the brief), Arnold & Porter Kaye Scholer LLP, Denver, Colorado, and Washington, DC, for Defendants-Appellees Tzipi Livni, Shmuel Chamdani, Na‘ama Boltin, Miriam Darmony, Einat Gilead-Meshulam, Tomer Moskowitz, Clanit Bergman, Orit Avigail Yahalomi, Zev Gabai, Ariel Lagana, Michael Duwani, Alona Sadeh, and Noa Regev.
Gerald D. Silver, Sullivan & Worcester LLP, New York, New York, for Defendants-Appellees Jewish Agency for Israel, Women‘s International Zionist Organization, Jerusalem Institute of Justice, and John Hagee.
Robert E. Crotty, Kelley Drye & Warren LLP, New York, New York, for Defendant-Appellee P.E.F. Israel Endowment Funds, Inc.
PER CURIAM:
Plaintiffs-appellants Eitan Eliahu, Dotan Newman, R. David Weisskopf, and Eldad Gidon (“Plaintiffs“) appeal from a December 28, 2017 order of the district court dismissing their action against defendants-appellees, current and former officials of the Government of Israel (the “Israeli Officials“) and nine charitable organizations and three affiliated individuals. Plaintiffs’ claims arise from their dissatisfaction with the outcome of divorce proceedings in Israel and subsequent efforts by their ex-wives, with the assistance of the charitable organizations, to collect child support from them. Weisskopf and Eliahu also
I. Order of Dismissal
“A case is properly dismissed for lack of subject matter jurisdiction under
Specifically, the Israeli Officials are eleven registrars or directors of Israel‘s Enforcement and Collection Authority, a retired Israeli judge, and Israel‘s former Minister of Justice and Foreign Affairs. Plaintiffs allege that these officials created fictious debts, impeded the payment of debts, and engaged in other similar misconduct while operating under color of Israeli law. Even assuming the officials’ challenged conduct was improper under Israeli law, there is no doubt that the conduct was official in nature. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-90 (1949) (distinguishing between an official‘s erroneous exercise of power, which is protected by sovereign immunity, and an official‘s acts taken in the absence of any delegated power, which are not so
With respect to the remaining defendants, the district court held that Plaintiffs failed to satisfy the domestic injury requirement of the Racketeer Influenced and Corrupt Organizations Act (“RICO“),
As Judge Pauley correctly concluded, Plaintiffs’ allegations that they suffered personal injuries, rather than “injur[ies] to business or property,” do not state a cognizable civil RICO claim, Bascunan v. Elsaca, 874 F.3d 806, 817 (2d Cir. 2017)), and Plaintiffs’ allegations that they suffered business-related injuries fall short because the alleged injuries lack the requisite connection to Plaintiffs’ domestic property or financial interests, see id. at 819. Plaintiffs’ claims of extortion, mail fraud, and aiding and abetting a RICO violation fail as well. With respect to the extortion claim, Plaintiffs have not identified a private cause of action under either federal or state law, and the Court is not aware of one. See Wisdom v. First Midwest Bank, of Poplar Bluff, 167 F.3d 402, 408-09 (8th Cir. 1999) (holding that there is no private cause of action under the federal extortion statute,
We also hold that the district court did not abuse its discretion in barring Weisskopf and Eliahu from filing future related actions against defendants without its permission. See Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009) (“We review all aspects of a district court‘s decision to impose sanctions . . . for abuse of discretion.” (citation omitted)). In determining whether to restrict a litigant‘s future ability to sue, a court must consider “whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties.” Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986); see also Richardson Greenshields Sec., Inc. v. Mui-Hin Lau, 825 F.2d 647, 652 (2d Cir. 1987) (explaining that “[a]bsent extraordinary circumstances, such as a demonstrated history of frivolous and vexatious litigation,” a court has no power to prevent parties from filing legal documents authorized by the federal rules). We have identified the following factors to be considered in deciding whether to impose an anti-filing injunction:
(1) the litigant‘s history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant‘s motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has
caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.
Iwachiw v. N.Y. State Dep‘t of Motor Vehicles, 396 F.3d 525, 528 (2d Cir. 2005) (per curiam) (quoting Safir, 792 F.2d at 24).
Here, the district court determined that the first, second, and fourth factors weighed in favor of issuing an anti-filing injunction against Weisskopf and Eliahu: their history of vexatious litigation; their improper motives for pursuing the litigation; and the expense to defendants and burden on the courts. See Appellants’ App‘x at 217-18. We agree with the district court‘s assessment as to those three factors, and we additionally conclude that the third and fifth factors also weigh against lifting the anti-filing injunction as to both Weisskopf and Eliahu.
First, we agree that Weisskopf has a demonstrable history of vexatious and baseless litigation against defendants. Id. Prior to this action, Plaintiffs, led by Weisskopf, filed twelve other actions in either federal or state courts throughout the United States.1 Eliahu does not have the same history as
Second, the district court did not err in determining that Weisskopf and Eliahu lacked an objective good faith expectation of prevailing. They were unsuccessful with their claims and defenses in Israel, and yet they came to the United States continuing to press their claims. The dismissal of similar, if not identical, prior actions underscores that both Weisskopf and Eliahu had little, if any, good faith basis for believing they could prevail on their claims. See Iwachiw, 396 F.3d at 529 (upholding anti-filing injunction on appeal entered against plaintiff who brought a similar prior appeal).
With respect to the fourth factor, defendants have continually been forced to defend frivolous lawsuits at not insignificant costs and the courts have been burdened with adjudicating these repeating claims. Appellants’ App‘x at 217-18. Weisskopf, in particular, has repeatedly sued the Israeli Officials across the United States despite decisions from several courts holding that they lack jurisdiction over these foreign defendants. Likewise, Eliahu has now asserted his meritless claims in four courts -- the Northern District of California, the Ninth
While the district court did not discuss the third and fifth factors, we conclude that they also weigh against vacating the anti-filing injunction against Weisskopf and Eliahu. In considering a litigant‘s status, we have recognized that pro se litigants, in many cases, are entitled to special solicitude, but we have not altogether “excuse[d] frivolous or vexatious filings by pro se litigants.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (per curiam) (citation omitted); Iwachiw, 396 F.3d at 529 n.1 (recognizing that pro se complaints are reviewed using less stringent standards but rejecting the suggestion that ordinary procedural rules in civil litigation should excuse mistakes or frivolous or vexatious filings of pro se litigants). While Plaintiffs filed the amended complaint pro se, evidently they had assistance from counsel. The document plainly appears to have been drafted by, or with the assistance of, an attorney, and Plaintiffs, including Weisskopf and Eliahu, engaged counsel to represent them in arguing against defendants’ motion to dismiss. On appeal, Weisskopf is represented by the same counsel and Eliahu proceeds pro se. Thus, at varied stages in this litigation, Eliahu and Weisskopf have received the assistance of
Finally, as to the fifth factor, we conclude that other sanctions against Weisskopf and Eliahu would be inadequate. Both complain of monetary injuries caused by Israeli judgments against them, but they clearly have the resources to pay the filing fees in actions against defendants in Israel and across the United States. Regardless of the precise details of Plaintiffs’ financial circumstances, however, the record demonstrates that monetary sanctions are unlikely to dissuade them from continuing their litigation campaign. Thus, we affirm the district court‘s order enjoining both Weisskopf and Eliahu from filing future, related actions without its permission.
CONCLUSION
Accordingly, the orders of the district court dismissing this action for lack of subject matter and failure to state a claim and imposing the anti-filing injunction are AFFIRMED. Further, we assess double costs against Weisskopf