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Doe v. State of Israel

November 10, 2005

JOHN DOE I, ET AL., PLAINTIFFS,
v.
STATE OF ISRAEL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiffs, an assortment of anonymous Palestinians living in Israel or the West Bank, or more recently in the United States, filed this action on July 18, 2002. Most plaintiffs are either U.S. citizens or permanent resident aliens. The defendants were initially divided into four groups: (1) the collective "federal defendants," consisting of the President and Secretary of State;*fn1 (2) the collective "Israeli defendants";*fn2 (3) an assortment of American defense contractors and manufacturers, collectively referred to as the "contractor defendants"; and (4) the collective "settler defendants."*fn3 On October 3, 2003, this Court granted the motions to dismiss filed by the federal defendants and the contractor defendants, concluding that plaintiffs had asked this Court to decide a non-justiciable political question. See Doe v. State of Israel, No. 02-01431, slip op. at 15 (D.D.C. Oct. 3, 2003) (stating that "claims involving arms sales to Israel -- which occur pursuant to a sensitive and detailed statutory and regulatory scheme inextricably intertwined with critical foreign policy decisions -- are non-justiciable political questions better left to consideration by the political branches") (hereinafter "Doe Mem. Op."). Hence, the remaining claims are those against the Israeli and settler defendants.

Now before the Court are motions to dismiss filed by the Israeli defendants and three of the settler defendants ("Rinat defendants") -- Congregation Rinat Yisrael ("Rinat Congregation"); Rabbi Yosef Adler ("Adler"); and Mr. Arnon Hiller ("Hiller"). For the reasons discussed below, the Court will grant these motions and dismiss the action against all defendants.*fn4

FACTUAL BACKGROUND

1. Israeli Defendants

The named defendants in this case include the sovereign State of Israel, as well as the Israeli General Security Service ("Shin Bet") and the Israeli military ("Israeli Defense Forces" or "IDF"). Plaintiffs also name an assortment of individuals employed as high-ranking officials within the Israeli government, including Prime Minister Ariel Sharon. See Compl. at 12-15.

The complaint exceeds 140 pages and includes nearly 600 paragraphs, broadly alleging that plaintiffs, or their loved ones, have been personally and financially injured by the actions of the Israeli defendants -- and those acting under their command or policies -- regarding settlement activities in the West Bank. See Compl. at 70-109. Plaintiffs have sued the individual Israeli defendants in both their official and personal capacities, alleging that those officials acted outside the scope of their official authority on behalf of the state. See Compl. at 12-15. Plaintiffs also allege that those officials are derivatively liable for the actions of the settler defendants, and further allege that the named officials had command responsibility for the actions of subordinate governmental employees who either acted pursuant to unofficial national policy or without proper supervision by the Israeli defendants. See, e.g., Compl. at 3. Violations of various international laws and conventions are also alleged. See Compl. at 109-12.

The complaint seeks punitive and treble damages, compensatory damages and injunctive relief, for causes of action allegedly arising under the Alien Tort Claims Act ("ATCA"), the Torture Victims Protection Act ("TVPA"), the Racketeering Influenced Corrupt Organizations Act ("RICO"), customary international law, assorted international conventions and agreements, and the tort laws of various American states. See Compl. at 109-39. Specifically, plaintiffs identify the following claims: genocide, Compl. at 112; crimes against humanity, Compl. at 113; war crimes, including intentional killing, torture, inhumane treatment, and destruction of property without military necessity, Compl. at 114; conspiracy to commit racketeering activities in coordination with the American government, based upon the predicate offenses of murder, attempted murder, kidnaping, threat of murder, and arson, Compl. at 115-16; conspiracy to commit racketeering activities with settler defendants and the Rinat defendants through the predicate offenses of attempted murder, threat of murder, arson, and extortion, Compl. at 118-20; extra-judicial killing, Compl. at 121; torture, Compl. at 123; arbitrary arrest and detention, Compl. at 124; cruel, inhuman, and degrading treatment, Compl. at 125; wrongful death, Compl. at 126; battery, Compl. at 128; false imprisonment, Compl. at 129; assault, Compl. at 130; intentional infliction of emotional distress, Compl. at 131; negligent infliction of emotional distress, Compl. at 132; trespass, Compl. at 134; and conversion, Compl. at 136.

The complaint is an amalgam of personal anecdotes describing the individual plaintiffs' suffering as the result of what they characterize as human rights violations. See Compl. at 70-108. All of the alleged human rights violations occurred in the West Bank or on Israeli soil. According to the complaint, however, injuries and harms have been suffered within the United States. For example, plaintiff Jane Doe II lives in South Carolina. Compl. at 108. She alleges negligent and intentional infliction of emotional distress, caused when she learned, from a television news report that she watched in the United States, that her childhood home in the West Bank had been destroyed by a rocket fired by Israeli forces, killing two of her sisters and injuring her niece and nephew. Compl. at 108-09. Other plaintiffs claim that the destruction of their livelihoods and property in the West Bank has caused them to suffer financial harm, which has impacted them within the United States. The majority of plaintiffs claim that, after returning to the United States, they continued to suffer residual pain and suffering from injuries inflicted abroad by the Israeli or settler defendants.

Plaintiffs begin by stating that "Israel is a terrorist state" and describing the Jewish settlements in the West Bank as "non or quasi governmental terrorist organizations." Compl. at 22 ¶ 76. Plaintiffs further assert that "[f]or decades, the United States government . . . has turned a blind eye to the outrages perpetrated by Israel and its agents against American citizens because the victims were of Palestinian descent," thereby "allow[ing Israel] to torture and kill American citizens with impunity." Compl. at 23 ¶ 81. The complaint claims that the land in the West Bank is Palestinian land, and charges that Israel has confiscated that land by encouraging its citizens to develop settlements on the land, which, according to plaintiffs, violates international law. See Compl. at 23 ¶ 83. The complaint also chronicles plaintiffs' perspective of how the Israeli-Palestinian conflict evolved, and why it persists. See Compl. at 22-70.

2. The Rinat Defendants

Rinat Congregation is a religious corporation that is organized under the laws of New Jersey and is located in Teaneck, New Jersey. Rinat Def.'s Mem. Supp. Mot. Dismiss at 2. It maintains a website that is accessible twenty-four hours a day from any location that has a viable internet connection and has not blocked the website. See Pl.'s Mem. Opp'n to Rinat Def.'s Mot. Dismiss at 23. The Rinat website provides information about its ideology -- including its support of the Israeli people regarding the ongoing Israeli-Palestinian conflict -- and allows visitors to join an e-mail list, submit contact information, provide financial support, volunteer their services, and submit suggestions. Id. at 23-24. The site also contains links to other sites that accept contributions. Id. at 25. One of the causes to which a visitor can contribute money is called "Israel Action," which plaintiffs characterize as the Israeli settlement movement. Id. According to plaintiffs, contributions made through the Rinat website are funneled to other settler defendants, particularly the Halamish/Neve Tzuf Settlement. Id. at 25.

Defendant Adler is the spiritual leader of Rinat Congregation, and defendant Hiller is its former president. Rinat Def.'s Mem. Supp. Mot. Dismiss at 2. Both reside in New Jersey. None of the Rinat defendants is located in or operated from the District of Columbia ("the District"). Rinat Def.'s Reply Mem. Supp. Mot. Dismiss at 18. Plaintiffs do not allege that the Rinat defendants frequently are present in the District for either business or pleasure, or have conducted any fund-raising activity in the District; nor do they allege that District residents have made contributions, or that any contributions have originated from the District.

The allegations against the Rinat defendants take two forms: (1) violations of RICO under 18 U.S.C. §§ 1962(b)-(d), brought by plaintiff John Doe II; and (2) a host of common law tort claims arising under the laws of various states (battery, assault, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence per se, trespass, and conversion). See Compl. at 118-21, 128, 130-36. All claims rest on plaintiffs' assertion that the Rinat defendants actively solicited financial contributions that were applied to purchase various types of protective gear that was, in turn, used in the West Bank by Israeli settlers. Compl. at 119-20 ¶ 465. Plaintiffs allege that the settlement activities have caused them to suffer physical, emotional, or financial injury because: (1) the financial interest or personal property was located in the West Bank; (2) the plaintiffs themselves were located in the West Bank; or (3) the actions taken by the settlers in the West Bank harmed a close relative located there, and upon learning of this harm, a plaintiff suffered injury in the United States. See, e.g., Compl. at 5-12.

The RICO claims against the Rinat defendants are asserted only by plaintiff John Doe II. Compl. at 118-21. He is an American citizen who resides in New Jersey. Compl. at 5-6 ¶ 8. He owned land in the West Bank from which he claims he was driven by the "threats and coercion" of the settler defendants. Id.; see also id. at 71-74; Pl.'s Mem. Opp'n to Rinat Def.'s Mot. Dismiss at 20. He alleges that the settler defendants pointed guns at him, threatened to shoot him if he did not leave, set fire to property, and destroyed his olive groves. Compl. at 5-6 ¶ 8; id. at 71-74, 118-21. His complaint states that the settler defendants engaged in a pattern of racketeering activity -- including the predicate offenses of attempted murder, threat of murder, arson, and extortion -- to drive him from his land, and that the Rinat defendants facilitated this pattern of racketeering activity through their financial contributions. Compl. at 119-20 ¶ 465.

Like his fellow tort plaintiffs, John Doe II claims that the Rinat defendants "knowingly provided funds specifically earmarked for materials that are used by the Settlement to illegally terrorize neighboring property owners and confiscate their land and are coconspirators in the illegal acts of the enterprise." Compl. at 21 ¶ 74; see also id. at 33 ¶¶ 110-12; id. at 118 ¶ 456 (incorporating allegations as applicable to John Doe II). None of the materials for which the Rinat defendants' contributions were "earmarked" consisted of offensive or aggressive equipment; rather, the materials were all in the nature of protective and defensive equipment. See Compl. at 33 ¶ 111 (stating that "these are not merely general contributions of funds, but rather are earmarked specifically for various military purposes, including dozens of bullet proof vests and body armor, night-vision goggles, armored jeeps and ambulances, floodlights, ballistic helmets, communications equipment, gun cabinets, generators, and even security fence repairs"). John Doe II even goes so far as to assert that the ". . . Rinat defendants in essence filled orders for paramilitary equipment -- orders provided by the Halamish . . . by soliciting others through its interactive Internet site . . . with the knowledge that the Halamish Settlement violates international law and its existence is maintained by threats and coercion of the civilian Palestinian population . . . ." Pl.'s Mem. Opp'n to Rinat Def.'s Mot. Dismiss at 14.

The multiple tort plaintiffs make identical allegations against the Rinat defendants, incorporating the same language asserted in John Doe II's complaint. However, the tort plaintiffs make claims of derivative liability for state tort law violations and do not allege RICO violations. See Compl. at 128 ¶ 510 (incorporating in the battery claim all allegations from the preceding 500 paragraphs of the complaint); id. at 130 ¶ 520 (same with respect to assault claim); id. at 131 ¶ 525 (same with respect to intentional infliction of emotional distress claim); id. at 132 ¶ 532 (same with respect to negligent infliction of emotional distress claim); id. at 134 ¶ 542 (same with respect to negligence per se claim); id. at 135 ¶ 547 (same with respect to trespass claim); id. at 136 ¶ 552 (same with respect to conversion claim). It is undisputed that the Rinat defendants themselves did not assault, batter, trespass, convert, or commit negligence per se; rather, the theory of liability is derivative and stems from civil conspiracy and aiding-abetting themes.*fn5 See Pl.'s Mem. Opp'n to Rinat Def.'s Mot. Dismiss at 26-29.

LEGAL STANDARD

In accordance with the more relaxed standards that apply to pleadings at the motion to dismiss stage, plaintiffs' factual allegations must be taken as true. Kowal v. MCI Comm. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1989). A complaint is sufficient to satisfy the liberal pleading requirements of Fed. R. Civ. P. 8(a) so long as it gives the defendants fair notice of what the claims are, and makes clear the grounds upon which those claims rest. Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1008 (7th Cir. 2002) (citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)). A court may not grant the motions to dismiss "'unless it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.'" BCCI Holdings (Luxembourg), Societe Anonyme v. Khalil, 20 F. Supp. 2d 1, 5 (D.C. Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

In this posture, the Court must draw all favorable inferences in plaintiffs' favor, Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), and must construe the complaint as a whole, Boim, 291 F.3d at 1008 (citing Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 839 (7th Cir. 1999)). But this standard does not mandate blind and absolute deference. The Court is not required to accept as true those legal conclusions or inferences drawn by plaintiffs that are not supported by the facts recited in the complaint. Kowal, 16 F.3d at 1276. Moreover, plaintiffs may not amend their complaint through their opposition papers. Calvetti v. Antcliff, 346 F. Supp. 2d 92, 107 (D.D.C. 2004); see also Arbitraje Casa de Cambio, S.A. de C.V. v. United States Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003). Thus, the Court will not consider facts included in, or legal inferences arising from, the opposition papers if they are absent from the complaint.

ANALYSIS

The Court will first consider plaintiffs' claims against the Israeli defendants, addressing the following issues: (1) adequacy of service of process on Israeli defendants under the Foreign Sovereign Immunities Act ("FSIA") and the Hague Convention; (2) immunity under the FSIA of the Israeli government defendants and the individual Israeli defendants sued in their official capacities; (3) head of state immunity as to defendant Sharon; (4) personal jurisdiction over the individual Israeli defendants in their personal capacities; (5) justiciability concerns under the political question and act of state doctrines; and (6) RICO's applicability to the conduct of the Israeli defendants. Then, the Court will consider the claims against the Rinat defendants, specifically plaintiffs' substantive claims under the RICO statute and personal jurisdiction over the Rinat defendants. The Court does not reach the merits of the common law tort claims against either the Israeli defendants or the Rinat defendants.

I. THE ISRAELI DEFENDANTS

A. Service of Process Under the FSIA and Hague Convention

Section 1608(a) of the FSIA enumerates four methods through which a "foreign state or political subdivision of a foreign state" may be served. 28 U.S.C. § 1608(a). The provisions of the FSIA also govern "instrumentalities" of the foreign sovereign. 28 U.S.C. § 1608(b). The State of Israel itself, and the IDF, are considered a "foreign state" under FSIA and thus fall within the ambit of § 1608(a). Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 153 (1994) (holding that "armed forces of a foreign sovereign are as a rule so closely bound up with the structure of the state that they must in all cases be considered as the 'foreign state' itself"). Shin Bet is also part of the "foreign state" of Israel because its "core functions" are governmental, not commercial. See Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003). As detailed below, plaintiffs have failed properly to serve the State of Israel, the IDF, and Shin Bet (collectively "the Israeli government defendants") under § 1608(a). The Court assumes that the individual Israeli defendants are covered by the more liberal requirements of § 1608(b) for purposes of the claims against them in their official capacities, under which they have been properly served in their official capacities. The claims against the individual Israeli defendants in their personal capacities, however, are governed by the Hague Convention, under which plaintiffs have failed to effect proper service.

In the D.C. Circuit, the methods set forth in § 1608(a) are the sole channels through which service may properly be effected on a foreign sovereign. See Transaero, 30 F.3d at 154. Those four methods are: (1) delivery of a copy of the summons and complaint pursuant to the terms of a pre-existing arrangement between the plaintiff and the foreign sovereign; (2) delivery pursuant to any applicable international convention concerning service of judicial documents; (3) dispatch of a copy of the summons, complaint, and notice of suit, properly translated, through a mail delivery mechanism that requires a signed receipt (the clerk of the court must address and send such materials directly to the primary official of the foreign sovereign's foreign affairs ministry); or (4) dispatch of two copies of the summons, complaint, and notice of suit to the Secretary of State (who will then forward one copy of the materials through the proper diplomatic channels to the foreign sovereign), if service has not been effected within thirty days of plaintiff's attempts pursuant to the other methods. See 28 U.S.C. § 1608(a)(1)-(4).

A plaintiff does not have the privilege to choose from among these four methods. The plain language of § 1608(a) makes clear that the FSIA lists the methods in descending order of preference; a plaintiff may only attempt service through the second method, for example, if service through the first method is unavailable or has proven unsuccessful. The requirements of § 1608(a) are applied strictly. Transaero, 30 F.3d at 153-54. In this case, there is no hint of a special arrangement existing between the Israeli defendants and plaintiffs. Although plaintiffs' counsel contends that he "requested" that the Israeli defendants waive FSIA service, there is no allegation that they agreed to do so. Thus, § 1608(a)(1) does not apply.

There is, however, an applicable international convention that governs service of process, in accordance with § 1608(a)(2) -- the Hague Convention, under which service must be effected through a central repository. See Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters, Nov. 15, 1965, art. 3, 20 U.S.T. 361, 658 U.N.T.S. 163 (hereinafter "Hague Convention"); see also Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988). Each signatory has established a nerve center, which receives the papers and then effects service on the named party unless such service would offend the nation's sovereignty or security. See Hague Convention, arts. 3, 5, 15. Israel's designated nerve center is its Directorate of Courts. See Israel's Decls. & Reservs. to the Hague Convention, available at http://hcch.net/ index_en.php?act=conventions.statusprint &cid=17 (last visited October 21, 2005). Here, the record is devoid of any assertion that plaintiffs attempted to effect service through Israel's Directorate of Courts. Neither substantial compliance with § 1608(a)'s requirements nor actual notice of the suit excuses plaintiffs' deviation from the section's mandates. Transaero, 30 F.3d at 153-54. Because plaintiffs have not effectuated service pursuant to § 1608(a)(2), the methods in §§ 1608(a)(3) and (a)(4) are not available to them, and the suit against the Israeli government defendants fails for want of proper service.

With respect to the suits against the individual Israeli defendants in their official capacities, the analysis is slightly more complex. The FSIA's protections are construed to apply to an individual acting in an official capacity on behalf of the state. See El Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996); accord Velasco v. Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 815 (6th. Cir. 2002). The D.C. Circuit authority on this point involved an officer of an instrumentality of the foreign state. El Fadl, 75 F.3d 668 (addressing whether FSIA protects a foreign bank officer if the foreign bank is an "instrumentality" of the sovereign). There, the court held that such an individual could qualify as an "instrumentality" under § 1608(b) of the FSIA. It is unclear whether that decision rested on the status of the officer as an individual, or whether it rested on the fact that the individual was an officer of an instrumentality rather than an officer of the foreign state. Because the court began from a broad recognition that "[a]n individual can qualify as an 'agency or instrumentality of a foreign state,'" id. at 671 (citation omitted), this Court will treat the individual Israeli defendants as "instrumentalities" covered by § 1608(b) rather than § 1608(a).

The service requirements of § 1608(b) are less stringent than those of § 1608(a), and can be satisfied by "technically faulty service" as long as the defendants receive adequate notice of the suit and are not prejudiced. See Transaero, 30 F.3d at 154; see also Straub v. Green, 38 F.3d 448, 453 (9th Cir. 1994); B.P. Int'l, Inc. v. Kingdom of Sweden, 281 F. Supp. 2d 73, 84 (D.D.C. 2003). Here, the individual Israeli defendants have actual notice of the suit, as evidenced by the motions and replies that they have filed, and they do not appear to have been prejudiced by plaintiffs' faulty service. Notwithstanding proper service, however, for the many reasons detailed in subsequent sections of this opinion, the claims against the individual Israeli defendants in their official capacities ultimately fail.

As to the claims against the individual Israeli defendants in their personal capacities, plaintiffs were required to comply with the mandates of the Hague Convention, which, when it applies, is recognized as the only acceptable way to serve foreign citizens. See Societe Nationale Industrielle Aerospatiale v. United States Dist. Ct., 482 U.S. 522, 534 n.15 (1987). Plaintiffs served the individual Israeli defendants in their personal capacities in exactly the same way that they served them in their official capacities -- by leaving copies of papers with random employees at the individual defendants' places of employment. See Israeli Def.'s Reply Mem. at 5-6. This is plainly insufficient under the provisions of the Hague Convention. Plaintiffs nonetheless assert that Israeli defendants were "obligated," under Fed. R. Civ. P. 4, to waive the service requirements of the FSIA. Pl.'s Mem. Opp'n to Israeli Def.'s Mot. Dismiss at 7-8. But the Hague Convention is a treaty; as such, it necessarily "pre-empts inconsistent methods of service prescribed by . . . [subordinate] law in all cases to which it applies." Volkswagenwerk Aktiengesellschaft, 486 U.S. at 699. Hence, plaintiffs' argument that colorable compliance with Rule 4 is enough to perfect service must fail -- Rule 4 does not preempt the requirements of the Hague Convention merely because those requirements may be costly or burdensome. Cf. Bybee v. Oper Der Standt Bonn, 899 F. Supp. 1217, 1221-1222 (S.D.N.Y. 1997).

Even if any personal service had taken place, it would not satisfy the Hague Convention under the circumstances of this case. The Hague Convention allows for personal service only if the receiving nation has not objected. See Hague Convention, arts. 10(b)-(c). When it ratified the Hague Convention, Israel explicitly stated that, with respect to Articles 10(b) and 10(c) of the Convention, it would only effect service through the Directorate of Courts. See Israel's Decls. & Reservs. to the Hague Convention, available at http://hcch.net/ index_en.php?act= conventions.statusprint&cid=17 (last visited October 21, 2005). This reservation constitutes an explicit objection to service by other means.

Plaintiffs nonetheless cling to the language of Article 10(a), which states that the Convention "shall not interfere with . . . the freedom to send judicial documents, by postal channels, directly to persons abroad." Hague Convention, art. 10(a). But courts diverge regarding whether the word "send" has the same meaning as "serve," and the provision has been interpreted by several courts to mean only that subsequent judicial papers, following proper service, may be forwarded directly to individuals through the mail. See, e.g., Nuovo Pignone SpA v. Storman Asia M/V, 310 F.3d 374, 383-84 (5th Cir. 2002); Bankston v. Toyota Motor Corp., 889 F.2d 172, 173-74 (8th Cir. 1989); Gallagher v. Mazda Motor of Am., 781 F. Supp. 1079, 1081 (E.D. Pa. 1992). But see Brockmeyer v. May, 383 F.3d 798, 802 (9th Cir. 2004); Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986). In any event, Article 10(a) does not create an affirmative right to utilize this postal method of personal service; it simply does not prohibit it. Brockmeyer, 383 F.3d at 804. A court must ...


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