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Biton v. Palestinian Interim Self-Government Authority

September 28, 2006


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Avigail Lewis Biton, individually and on behalf of her children, and Rachel Asraf bring suit under the Antiterrorism Act of 1991 ("ATA"), 18 U.S.C. § 2333, and various tort theories against the Palestinian Interim Self-Government Authority, also known as the Palestinian Authority or the Palestinian National Authority ("PA"), and the Palestinian Liberation Organization ("PLO").*fn1 Pending before the Court is Defendants' Motion to File Answer Out of Time and to Vacate Entry of Default, which is opposed by the Plaintiffs.


The underlying facts of this case may be simply stated: at approximately 7:30 a.m. on November 20, 2000, a roadside device exploded near a bus that was transporting elementary school children and their teachers from Kraf Darom, a former Israeli settlement in the southern Gaza Strip, toward Gush Katif. The bombing took the life of Plaintiff's Biton's husband, Gabriel Biton, and injured Plaintiff Rachel Asraf. Plaintiffs contend that Defendants are responsible for this bombing and the resulting deaths and injuries. The bombing is believed by the Defendants to have been part of the "al-Aqsa Intifada," a series of violent demonstrations and clashes between Palestinians and Israeli Defense Forces that ensued following Ariel Sharon's controversial visit to the Temple Mount/Haram al-Sharif in Jerusalem in September 2000.

The Complaint in this action was filed on February 20, 2001. A First Amended Complaint was filed on March 5, 2001, and a Second Amended Complaint was filed, with the agreement of the Defendants, on November 9, 2001. Defendants failed to respond to the Second Amended Complaint and the clerk of the court entered default upon the Plaintiffs' motion. See Dkt. #10-12. Plaintiffs moved for default judgment, Dkt. #19, but the Defendants moved to set aside the default and for leave to file untimely a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). See Dkt. #13, 18. In an opinion entered on November 27, 2002, this Court (Roberts, J.) found that "defendants' vague and unsupported explanations for their failure to respond to the complaint timely seem meritless," but granted their motion to set aside default and to file their Rule 12(b) motion primarily because the "case is procedurally in its early stages" and that Defendants had asserted jurisdictional defenses. Biton v. Palestinian Interim Self-Government Authority, 233 F. Supp. 2d 31, 32-33 (D.D.C. 2002) ["Biton I"].

After the case was transferred to the undersigned, the Court denied Defendants' 12(b) motion. See Biton v. Palestinian Interim Self-Government Authority, 310 F. Supp. 2d 172 (D.D.C. 2004) ["Biton II"]. Defendants then moved to file a Motion for Limited Reconsideration Upon a Supplemented Record, Dkt. #30, which the Court granted on May 24, 2004, by minute entry order and directed Defendants to file a motion to dismiss. Defendants filed their motion and related papers between August 18 and September 1, 2004, and Plaintiffs responded with a motion for partial summary judgment on the issues presented. Dkt. #44. The Court denied Defendants' supplemental motion in its entirety. See Biton v. Palestinian Interim Self-Government Authority, 412 F. Supp. 2d 1 (D.D.C. 2005) ["Biton III"]. Under Federal Rule of Civil Procedure 12(a)(4)(A), entry of the Order denying Defendants' supplemental motion triggered the time for Defendants to answer the complaint, but Defendants did not file an answer.

Plaintiffs again requested entry of default against Defendants, which was entered on November 22, 2005. Dkt. #50. On January 27, 2006, Plaintiffs then moved under Rule 55(b)(2) for judgment by default, following a requested one-day damages hearing. Dkt. #51. Plaintiffs' motion has not been acted upon by the Court.

On July 24, 2006, Defendants filed an answer. Dkt. #57. Defendants did not seek leave to file and, in light of the default, Plaintiffs immediately filed an application to strike the answer and renewed their motion to set a damages hearing. Dkt. #58. Defendants belatedly filed the instant Motion to File Answer Out of Time and to Vacate Entry of Default on July 31, 2006, although they dated it July 24, 2006.


Federal Rule of Civil Procedure 6(b) provides the standard by which a court is to be guided when a party requests an extension of time to file a pleading. When the request for an extension is made after the deadline has passed, the court may extend the deadline only "where the failure to act was the result of excusable neglect." Fed. R. Civ. P. 6(b). A "post-deadline extension[] may be granted only 'for cause shown' and 'upon motion.'" Smith v. District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005) (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 896 (1990)). "Any post-deadline motion 'must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue and that he therefore ought to respond.'" Smith, 430 F.3d at 455 (quoting Lujan, 497 U.S. at 896 n.5). Factors to be considered in evaluating excusable neglect include the "danger of prejudice to the other party" as well as "'the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.'" Smith, 430 F.3d at 457 n.5 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388 (1993)).

Defendants initially filed their belated answer without any motion for leave to file. "In the absence of any motion for an extension, the trial court [has] no basis on which to exercise its discretion" and determine if excusable neglect exists. Smith, 450 F.3d at 457. The answer without a motion was, as argued by Plaintiffs, a legal nullity. Pls.' Mot. to Strike Answer at 1. Reminded by Plaintiffs' Motion to Strike, Defendants filed the instant one-page Motion and stated, in toto:

1. Do [sic] to the death of President Arafat and the new elections defendants [sic] counsel was unable to meet with the client to further discuss the case.

2. Palestine held two elections, one for the President two months after the death of President Arafat and one for Parliament. A change of policy took place and the new ...

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