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Estate of Klieman v. Palestinian Authority

December 29, 2006


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


The estate, survivors and heirs of Esther Klieman, a United States citizen, have brought this action under Section 2333 of the Antiterrorism Act of 1991 ("ATA"), 18 U.S.C. §§ 2331 et seq., and various tort theories, against the Palestinian Authority (the "PA"), also known as the Palestinian Interim Self-Government Authority and the Palestinian National Authority; the Palestine Liberation Organization (the "PLO"); Al Aqsa Martyrs Brigade ("Al Aqsa"); Fatah; Tanzim; Force 17; Yasser Arafat, now deceased; Marwan Barghouti; Tamer Rassam Salim Rimawi; Hussam Abdul-Kader Ahmad Halabi, also known as Abu Arav; Ahmed Hamad Rushdie Hadib, also known as Ahmed Barghouti; and Annan Aziz Salim Hashash.*fn1 On March 30, 2006, the Court issued an Opinion and an Order denying defendants' first motion to dismiss and granting plaintiff's partial motion for summary judgment ("Opinion"). See Klieman v. Palestinian Auth'y, 424 F. Supp. 2d 153 (D.D.C. 2006) ("Klieman I").

To summarize, in its previous Opinion the Court held that: (1) collateral estoppel precluded the relitigation of the issues surrounding defendants' assertion of sovereign immunity and that sovereign immunity does not divest this Court of jurisdiction to hear this case, see Klieman I at 159; (2) judicial resolution of this case was not precluded by the political question doctrine, see id. at 162; (3) the attack alleged in the Complaint did not occur "in the course of" an armed conflict and therefore was not an "act of war" outside of the jurisdiction of the ATA, see id. at 167; and (4) whether the attack at issue met the definition of "international terrorism" in the ATA was a disputed question of material fact which should not be decided by the Court in the context of a motion to dismiss. See id. That Opinion also granted defendants leave to "raise additional jurisdictional defenses by motion." Id. at 168.

This matter is now before the Court on defendants' second motion to dismiss.*fn2 Defendants move to dismiss for lack of personal jurisdiction due to insufficient service of process on both the individual and the organizational defendants, as well as on grounds of insufficient "minimum contacts" to satisfy due process. See Mot. at 2-3. Defendants also move to dismiss for lack of subject matter jurisdiction, essentially asking the Court to reconsider its holding denying sovereign immunity to the Palestinian Authority and the Palestinian Liberation Organization. See Mot. at 4-5 ("[D]efendants respectfully suggest further consideration of the Court's subject matter jurisdiction is appropriate. . .").

The Court declines to reconsider its previous decision on sovereign immunity and subject matter jurisdiction. Therefore, the instant motion will be considered solely as one to dismiss for insufficient service of process and for lack of personal jurisdiction under Rules 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure. For the reasons discussed below, the Court concludes that none of the defendants have been served properly, but that plaintiffs should be given a further opportunity to properly effect service.


As alleged in the complaint, on March 24, 2002, a terrorist attack was carried out on a public transport bus traveling "on the Abud bypass road, near the village of Umm Safah, north of Ramallah, in the State of Israel or in territories administered or controlled by the State of Israel." Complaint ¶ 23; see also id. ¶¶ 1, 22, 24. The attack, in which one of the named individual defendants is alleged to have opened fire on the bus with a Kalachnikov automatic rifle, resulted in the death of Esther Klieman. Id. ¶¶ 24, 25. Plaintiffs contend that defendants are responsible for the attack and, accordingly, have brought this action under the ATA, which establishes a federal cause of action for damages resulting from terrorist attacks in foreign countries.

The ATA provides in relevant part:

Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees.

18 U.S.C. § 2333(a). The ATA, in turn, defines "international terrorism" as "activities" that:

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;

(B) appear to be intended -- (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the ...

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