Estate of Esther Klieman v. Palestinian Authority , 82 F. Supp. 3d 237 ( 2015 )

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
Esther 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, 134 S. Ct. 746 (2014),
the PA and the PLO again move for reconsideration of this Court’s rulings on personal
jurisdiction. Upon consideration of the parties’ papers, the relevant legal authorities, the oral
arguments of counsel, and the entire record in this case, the Court will grant defendants’ motion
to reconsider. Due to the intervening change in the law, this Court concludes that it cannot
exercise general personal jurisdiction over the PA and the PLO. The Court also finds insufficient
bases for the exercise of specific personal jurisdiction. The Court therefore will dismiss the PA
and the PLO from this action and will dismiss the case. 1
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
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 supplemental 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’ response 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
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., 424 F. Supp. 2d 153 (D.D.C. 2006) (“Klieman I”). Defendants
then moved to dismiss for lack of personal jurisdiction due to inadequate service of process and
insufficient contacts to satisfy due process. Estate of Klieman v. Palestinian Auth., 467 F. Supp.
2d 107, 110 (D.D.C. 2006) (“Klieman II”). On December 29, 2006, the Court issued an Opinion
and Order holding that plaintiffs’ service of process was ineffective and granting plaintiffs thirty
3
days to perfect service. Id. at 110. But the Court rejected the PA’s and the PLO’s arguments
that they lacked sufficient contacts with the United States for the exercise of personal
jurisdiction. Id.
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., 547 F. Supp. 2d 8, 11 (D.D.C. 2008) (“Klieman III”). In a separate Memorandum
Opinion and Order, the Court denied the defendants’ motion for reconsideration of this Court’s
decision on personal jurisdiction. Memorandum Opinion and Order at 1, 3, April 24, 2008
[Dkt. No. 85]. The Court explained that the contacts the PA and the PLO allegedly had with the
United States, including speechmaking and participation in other public appearances, were
sufficient for the Court to exercise personal jurisdiction, and that doing so “comport[ed] with
traditional notions of fair play and substantial justice.” Id. at 3. In so holding, the Court aligned
itself with other U.S. courts finding general personal jurisdiction over the PA and the PLO. See,
e.g., Ungar v. Palestinian Auth., 153 F. Supp. 2d 76, 88 (D.R.I. 2001) (concluding that the PA’s
and the PLO’s contacts with the United States, including maintaining an office in Washington,
D.C., engaging in fundraising and public speaking engagements, and hiring a U.S. lobbying firm
were sufficient to exercise personal jurisdiction); see also Biton v. Palestinian Auth., 310 F.
Supp. 2d 172, 175, 179-80 (D.D.C. 2004) (concluding that the PA’s contacts with the United
States — such as maintaining offices and bank accounts in the United States and employing a
lobbying firm to develop a U.S. public relations campaign — were sufficient to exercise personal
jurisdiction).
4
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,
134 S. Ct. 746 (2014). Defs.’ Mot. at 12. In response, plaintiffs argue that (1) the defendants
waived their objection to the Court’s previous findings of personal jurisdiction, (2) the Court can
exercise general jurisdiction over defendants despite Daimler, (3) this Court can exercise specific
personal jurisdiction in the alternative, and (4) plaintiffs at the least are entitled to jurisdictional
discovery before the Court decides whether it has jurisdiction. These arguments are addressed in
turn.
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., 217 F.R.D. 235, 237 (D.D.C. 2003); see also Bean v. Soberano, No.
04-1713, 2008 WL 239833, at *1 (D.D.C. Jan. 24, 2008); America v. Preston, No. 03-1807, 2007
WL 8055550, at *1 (D.D.C. Feb. 12, 2007); FED. R. CIV. P. 54(b) (“[A]ny order or other
decision, however designated, that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the action as to any of the claims or parties
and may be revised at any time before the entry of a judgment adjudicating all the claims and all
the parties’ rights and liabilities.”). Notwithstanding the broad discretion of a court to reconsider
its own interlocutory decisions, however, and “in light of the need for finality in judicial
decision-making,” district courts should only reconsider interlocutory orders “when the movant
5
demonstrates (1) an intervening change in the law; (2) the discovery of new evidence not
previously available; or (3) a clear error of law in the first order.” In re Vitamins Antitrust Litig.,
No. 99-1097, 2000 WL 34230081, at *1 (D.D.C. July 28, 2000).
Defendants argue that Daimler AG v. Bauman, 134 S. Ct. 746 (2014), was such
an intervening change in the law. The Court agrees. In Daimler, Argentine residents sought
jurisdiction in California over DaimlerChrysler Atiengesellchaft (“Daimler”), a German
corporation, based on the California contacts of Daimler’s U.S. subsidiary. Id. at 750-51. The
Supreme Court rejected plaintiffs’ arguments, however, holding that Daimler’s U.S. subsidiary,
its continuous business operations, and commercial sales accounting for 2.4% of Daimler’s
worldwide sales were insufficient to support general jurisdiction. Id. at 751-52, 760-62.
Applying the “essentially at home” test first articulated in Goodyear Dunlop Tires Operations,
S.A. v. Brown, 131 S. Ct. 2846 (2011), the Supreme Court iterated that a court may not exercise
general jurisdiction over a foreign corporation unless “[the corporation’s] affiliations with the
[forum] are so ‘continuous and systematic’ as to render them essentially at home in the forum
State.” Daimler AG v. Bauman, 134 S. Ct. at 754 (quoting Goodyear Dunlop Tires Operations,
S.A. v. Brown, 131 S. Ct. at 2851); see also Alkanani v. Aegis Def. Servs. LLC, 976 F. Supp. 2d
13, 29 (D.D.C. 2014) (holding that, under Daimler, a court must consider whether a foreign
corporation’s contacts are “so extensive, so constant, and so prevalent that they render the
defendant ‘essentially at home’ in the forum”).
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., 346 F. Supp. 2d 64, 74
6
(D.D.C. 2004). In rendering its 2006 and 2008 personal jurisdiction decisions in this case, the
Court thus did not consider whether the PA’s and the PLO’s U.S. contacts were “so ‘continuous
and systematic’ as to render them essentially at home” in the United States. Daimler and
Goodyear therefore constitute an intervening change in the law and reconsideration of those prior
decisions is warranted.
B. Waiver of the Personal Jurisdiction Defense
The Court must first address plaintiffs’ 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 FED. R. CIV. P. 54(b). Tellingly, the Court has not
2
Judge Kessler’s recent decision 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,
2014 WL 2865538, at *3-5 (D.D.C. June 23, 2014).
7
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., 952 F. Supp. 2d 108, 115-16 (D.D.C. 2013)
(Gwin, J., sitting by designation) (declining to apply the Goodyear “at home” test outside of the
stream of commerce context); see also 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FED.
PRAC. & PROC. § 1067.5 (3d ed. Supp. 2013) (“If the Goodyear opinion stands for anything . . . it
simply reaffirms that defendants must have continuous and systematic contacts with the forum in
order to be subject to general jurisdiction.”). It was only after the Supreme Court issued its
decision in Daimler that the scope of Goodyear’s “at home” test was appreciated. And there is
no indication that plaintiffs have been prejudiced because, since Goodyear was decided, the
activity in this case largely has been confined to discovery matters initiated by plaintiffs.
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, 417 F.3d 1, 6-7
(D.C. Cir. 2005); First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1378-79 (D.C. Cir.
1988). In order to meet this burden, plaintiffs “must provide sufficient factual allegations, apart
from mere conclusory assertions, to support the exercise of personal jurisdiction over the
defendant.” Howe v. Embassy of Italy, No. 13-1273, 2014 WL 4449697, at *2 (D.D.C. Sept. 11,
2014); see also First Chicago Int’l v. United Exch. Co., 836 F.2d at 1378 (“Conclusory
8
statements . . . do not constitute the prima facie showing necessary to carry the burden of
establishing personal jurisdiction.”); Alkanani v. Aegis Def. Servs., 976 F. Supp. 2d at 22
(plaintiff has the burden of establishing a factual basis for a court’s exercise of personal
jurisdiction and for alleging facts connecting defendant with the forum).
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., 300 F. Supp. 2d 119, 127
(D.D.C. 2004). It “may receive and weigh affidavits and other relevant matter [outside of the
pleadings] to assist in determining the jurisdictional facts.” Id. (quoting United States v. Philip
Morris Inc., 116 F. Supp. 2d. 116, 120 n.4 (D.D.C. 2000)); see also Alkanani v. Aegis Def.
Servs., 976 F. Supp. 2d at 22. But all factual discrepancies must be resolved in the plaintiffs’
favor. Crane v. N.Y. Zoological Soc., 894 F.2d 454, 456 (D.C. Cir. 1990).
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, 2014 WL 1873411, at *30 (D.D.C. May 9, 2014). Rule 4(k)(2) provides that:
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.
FED. R. CIV. 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., 94 F. Supp. 2d 26, 31 (D.D.C. 2000)
(Hogan, J.) (citing Advisory Comm. Note to 1993 Amendment). As there is no dispute that
some of plaintiffs’ claims arise under federal law, and neither party asserts that the defendants
9
are subject to jurisdiction in any state’s courts of general jurisdiction, the only question before
the Court is whether jurisdiction over the defendants may be exercised consistent with the
Constitution and laws of the United States. See Ins. Corp. of Ireland, Ltd. v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 702-03 (1982); Biton v. Palestinian Auth., 310 F. Supp. 2d at
177.
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, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311
U.S. 457, 463 (1940)); see Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). “The relationship
between the defendant and the forum must be such that it is ‘reasonable . . . to require the
corporation to defend the particular suit which is brought there.’” World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 292 (1980) (quoting Int’l Shoe Co. v. State of Wash., Office of
Unemployment Comp. & Placement, 326 U.S. at 317); see also Gordon v. Holder, 826 F. Supp.
2d 279, 290 (D.D.C. 2011), aff’d, 721 F.3d 638 (D.C. Cir. 2013).
2. General Personal Jurisdiction
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
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 Laden,
417 F.3d at 8 (“[S]ervice of process does not alone establish personal jurisdiction. As the
10
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., 153 F. Supp. 2d 76, and Biton v. Palestinian Auth., 310 F. Supp. 2d 172, when conducting
its personal jurisdiction analysis. Klieman II, 467 F. Supp. 2d at 113. The contacts of the PA
and the PLO identified in those cases include: maintaining a PLO office in Washington, D.C.;
conducting fundraising activities and other public speaking engagements; hiring a lobbying firm
to develop a public relations campaign; entering into commercial contracts in the United States;
and maintaining bank accounts in New York. Ungar v. Palestinian Auth., 153 F. Supp. 2d at 88;
Biton v. Palestinian Auth., 310 F. Supp. 2d at 179-80.
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,
131 S. Ct. at 2851) (internal quotation marks omitted). 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, 921 F. Supp. 2d 244,
253 (S.D.N.Y. 2013) (“[B]ecause the language of the Fifth Amendment’s due process clause is
identical to that of the Fourteenth Amendment’s due process clause, the same general principles
guide the minimum contacts analysis.”); see also GSS Grp. Ltd v. Nat’l Port Auth., 680 F.3d
805, 816-17 (D.C. Cir. 2012) (applying Goodyear when considering minimum contacts under the
11
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, 2015 WL 567340, at *8 (D.D.C. Feb. 11,
2015). The PLO likewise is based in the West Bank and operates embassies and missions
around the world. See Defs.’ Mot. at 12. Defendants’ activities in the United States represent a
tiny fraction of their overall activity during the relevant time period, and are a smaller proportion
of their overall operations than Daimler’s California-based contacts. Defs.’ Reply at 3. 5 The
fact that defendants maintain a small office in Washington does not save plaintiffs’ argument.
Daimler AG v. Bauman, 134 S. Ct. at 761 n.18 (noting that exercising general jurisdiction based
on the presence of a local office “should not attract heavy reliance today”). 6
Fifth Amendment). The Court similarly rejects plaintiffs’ contention that defendants are foreign
political entities not entitled to constitutional protections. Pls’ Opp. at 4-6. This issue was
resolved by the Court’s earlier decisions that defendants are not foreign states entitled to
sovereign immunity, Klieman I, 424 F. Supp. 2d at 159, but rather are foreign organizations
protected by the Due Process Clause. Klieman II, 467 F. Supp. 2d at 113; see also GSS Grp. Ltd
v. Nat’l Port Auth., 680 F.3d at 809-10.
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.’ Reply 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., 976 F. Supp. 2d at 25; Savage v. Bioport, Inc., 460 F. Supp. 2d 55, 62 (D.D.C.
2006). The Court need not resolve this question, however, because these contacts nonetheless
are insufficient for the exercise of general personal jurisdiction under Goodyear and Daimler.
12
The Court disagrees with the recent application of Daimler to the Palestinian
Authority in Sokolow v. Palestine Liberation Org., No. 04-397, 2014 WL 6811395 (S.D.N.Y.
Dec. 1, 2014). There the court concluded that, because the record did not indicate where the
Palestinian Authority’s employees worked, “[t]his record is therefore insufficient to conclude
that either defendant is ‘at home’ in a particular jurisdiction other than the United States.” Id. at
*2. But that is not the question Daimler requires courts to ask. It is not defendants’ burden to
demonstrate a “home” outside the United State, but the plaintiffs’ burden to present a prima facie
case that defendants are “at home” in the United States. See supra at 6, 8-9; see also Safra v.
Palestinian Auth., 2015 WL 567340, at *9 (holding same and noting that plaintiffs “must [also]
overcome the common sense presumption that a non-sovereign government is at home in the
place they govern”). Plaintiffs in this case have failed to do so.
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, 466 U.S. 408, 414 n.8 (1984). A court’s exercise of specific
jurisdiction “depends on an ‘affiliatio[n] between the forum and the underlying controversy,’
principally, activity or an occurrence that takes place in the forum State and is therefore subject
to the State’s regulation.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. at 2851
(quoting Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested
Analysis, 79 HARV. L. REV. 1121, 1136 (1966)); see Walden v. Fiore, 134 S. Ct. at 1121
(whether a forum state may assert specific jurisdiction depends on “the relationship among the
defendant, the forum, and the litigation,” and “defendant’s suit-related conduct must [have] a
substantial connection with the forum State”). If the activities giving rise to the suit occurred
13
abroad, jurisdiction is proper only if the defendant has “purposefully directed” its activities
towards the forum and if defendant’s “conduct and connection with the forum State are such that
he should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz,
471 U.S. 462, 472, 474 (1985); Williams v. Romarm, SA, No. 13-7022, 2014 WL 2933222, at
*5, *7 (D.C. Cir. July 1, 2014) (concluding that plaintiffs’ failure to allege any conduct by
defendant that was purposefully directed towards the forum compelled a finding of no specific
jurisdiction); cf. Mwani v. bin Laden, 417 F.3d at 13 (concluding that specific jurisdiction was
proper when defendants “purposefully directed” their activities at the United States and the
litigation resulted from injuries to the plaintiffs “that ‘arise out of or relate to’ those activities”).
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.
14
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, 976 F. Supp. 2d at 27 (noting that “[s]ome courts have interpreted the phrase
‘arise [from]’ [under D.C.’s long-arm statute] as endorsing a theory of ‘but-for’ causation, while
other courts have required proximate cause to support the exercise of specific jurisdiction,” but
holding that “at a minimum [arise from] means that the claim raised must ‘have a discernible
relationship’ to the defendant’s business transacted in the district”). Plaintiffs have failed to
allege anything of the kind. 7
Second, plaintiffs argue that defendants supported terrorists, such as those
individuals and organizations behind the March 2002 attack, in order to persuade U.S.
policymakers to pressure Israel to withdraw from the contested areas. See Pls.’ Supp. Mem.
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 provided 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]).
15
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, 417 F.3d at 4, 14 (concluding that a terrorist act
directed at the United States embassy abroad was sufficient for the exercise of personal
jurisdiction over foreign defendants, as defendants “purposefully direct[ed] their terror at the
United States,” and therefore could “reasonably anticipate being haled into court” here).
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. Compl. ¶ 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 because the defendant directed his
16
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, 444 U.S. at 295 (“‘Foreseeability’ alone has never been a
sufficient benchmark for personal jurisdiction under the Due Process Clause.”).
Plaintiffs’ attempt to analogize this case to Calder v. Jones, 465 U.S. 783 (1984),
is unavailing. In Calder, the Supreme Court held that a court in California could properly
exercise specific jurisdiction over two Florida journalists where California was “the focal point
both of the story and of the harm suffered.” Id. at 788-89. But the facts in this case are readily
distinguishable. Plaintiffs have not made any prima facie showing that defendants’ alleged
conduct — providing support for terrorist organizations in Israel — focused on the United States,
or that the resulting harm was disproportionately suffered in the United States. And, as noted,
exercising specific jurisdiction because the victim of a foreign attack happened to be an
American would run afoul of the Supreme Court’s holding that “[d]ue process requires that a
defendant be haled into court in a forum State based on his own affiliation with the State, not
based on the ‘random, fortuitous, or attenuated’ contacts he makes by interacting with other
persons affiliated with the State.” Walden v. Fiore, 134 S. Ct. at 1123 (quoting Burger King
Corp. v. Rudzewicz, 471 U.S. at 475). 8
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, 660 F. Supp. 2d 410, 420-22 (E.D.N.Y. 2009); Strauss v.
Credit Lyonnais, S.A., 249 F.R.D. 429, 443-46 (E.D.N.Y. 2008). But as the D.C. Circuit has
pointed out, a “statute cannot grant personal jurisdiction where the Constitution forbids it.” Price
v. Socialist People’s Libyan Arab Jamahirya, 294 F.3d 82, 95 (D.C. Cir. 2002). The Court is
confident, however, that courts are able to exercise specific personal jurisdiction in ATA cases
17
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, 26 F.3d 1143, 1147 (D.C. Cir. 1994), and is appropriate “if it could
produce facts that would affect [the court’s] jurisdictional analysis.” Al Maqaleh v. Hagel, 738
F.3d 312, 325-26 (D.C. Cir. 2013). Jurisdictional discovery is not appropriate, however, “in the
absence of some specific indication regarding what facts additional discovery could produce.”
Id. The plaintiffs therefore must “demonstrate with plausible factual support amounting to more
than speculation or conclusory statements that discovery will uncover sufficient evidence” to
establish personal jurisdiction. Simon v. Repub. of Hungary, 2014 WL 1873411, at *41; see,
e.g., El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996), abrogated on other
grounds by Samantar v. Yousuf, 560 U.S. 305 (2010) (plaintiff was entitled to jurisdictional
discovery based upon evidence of specific transactions by defendant bank in the forum).
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 consultants, 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, 714 F.3d 659, 673-75 (2d Cir. 2013).
18
demonstrated above, funds from the Defendants are then used to
support terrorism, including the very terrorists who murdered Esther
Klieman.
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 United 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., 2015 WL 567340, at *9, *13. Jurisdictional discovery therefore is
unwarranted and plaintiffs’ request will be denied. See Williams v. Romarm, SA, 756 F.3d 777,
786 (D.C. Cir. 2014) (affirming denial of jurisdictional discovery when plaintiffs’ requested
discovery would not enable plaintiffs “to account for the tenuous connection” between defendant
and the forum); Savage v. Bioport, Inc., 460 F. Supp. 2d at 62-63 (denying jurisdictional
discovery where “[a]dditional discovery of [defendant]’s contacts will not affect the
jurisdictional outcome”).
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III. CONCLUSION
For the foregoing reasons, defendants’ motion for reconsideration of the 2006 and
2008 interlocutory orders on 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 denied 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
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