United States District Court, District of Columbia
GLADYS KESSLER, District Judge.
Plaintiffs are family members and the estate of Esh Kodesh Gilmore, a United States national killed in a shooting attack in East Jerusalem on October 30, 2000. They bring this case against Defendants, the Palestinian Interim Self-Government Authority ("PA") and the Palestine Liberation Organization ("PLO") (collectively, "Defendants") pursuant to the Anti-Terrorism Act of 1991 ("ATA"), 18 U.S.C. § 2331, et seq., and related common law theories.
This matter is before the Court on Defendants' Motion for Summary Judgment [Dkt. No. 285]. Upon consideration of the Motion, Opposition [Dkt No. 336-1], and Reply [Dkt. No. 341], the entire record herein, and for the reasons stated below, Defendants' Motion for Summary Judgment shall be granted.
A. Factual Background
Plaintiffs' family member Esh Kodesh Gilmore ("Gilmore") was a United States national who made his home in Mevo Modi'im, an Israeli neighborhood near the West Bank. See SOMF at 1 ¶¶ 1-2. He was killed on October 30, 2000, in a shooting attack at a branch office of the National Insurance Institute ("NII") in East Jerusalem, where he worked as a security guard. Id. at 2 ¶ 3.
The attack occurred at the beginning of the Second Intifada, a period of sustained violence and unrest in Israel and Palestine. According to an informational release issued by the Israel Ministry of Foreign Affairs ("IMFA"), the shooting was perpetrated by a sole gunman who entered the NII shortly after noon, fired a number of shots at close range at the two security guards in the waiting room, and fled on foot. See Second Corrected Decl. of Robert J. Tolchin ("Tolchin Decl."), Ex. 62 (IMFA webpage dated Sept. 23, 2013) [Dkt. No. 333-21]. Gilmore died upon arrival at the hospital. Id.
Although it is undisputed that the State of Israel never prosecuted or convicted anyone in connection with the attack, SOMF ¶ 4, Plaintiffs believe the attack was planned and carried out by a terrorist cell consisting of officers in a PA security unit known as the Presidential Security Services, or "Force 17, " and members of an armed PLO faction called "Tanzim." See Complaint ("Compl.") ¶¶ 17-30 [Dkt. No. 1]. Specifically, they allege that the gunman who shot Gilmore was a Force 17 officer named Muhanad Abu Halawa. Id . ¶¶ 26, 27, 28. Abu Halawa was killed by Israeli Defense Forces (IDF) on or about March 5, 2002. SOMF ¶ 6.
Plaintiffs claim that "[b]etween September 2000 and his death in March 2002, a time period during which he was employed full-time in Presidential Security/Force 17, Abu Halawa spent much if not most of his time executing terrorist attacks together with a mix of other PA and Fatah officers, leaders and operatives... all of whom were convicted of carrying out numerous violent terrorist attacks[.]" SOMF at 8 ¶ 16. They further allege that, in carrying out the attack at the NII, Abu Halawa acted under a direct order of Force 17 regional commander Mahmoud Damara and pursuant to a broad directive issued by former Palestinian leader Yasser Arafat "to organize, plan and execute widespread acts of terrorism against civilians in Israel, Gaza and the West Bank." Compl. ¶¶ 23, 25, 28, 29.
Plaintiffs' theory that Abu Halawa perpetrated the attack is based in large part on two sets of custodial statements allegedly given to Israeli police by his associates. The first is a January 18, 2001, written statement of Tanzim member Mustafa Maslamani ("Maslamani") describing a conversation he had with Abu Halawa in a cafe in Ramallah on December 30, 2000. According to this statement, Abu Halawa told Maslamani "that there were organizations that said that they had carried out... attacks at [the] French Hill [area of Jerusalem] and at the National Insurance Institute and that [it] is not true, because the one who did it was he himself, Muhannad Abu Halawa." See Tolchin Decl., Ex. 8 (custodial statement of Maslamani, dated Jan. 18, 2001) at 1 [Dkt. No. 331-8].
At his deposition in December 2001, however, Maslamani repudiated this statement, and testified repeatedly that he knew "nothing" about the NII attack and that Abu Halawa "never told me about that subject." See Tolchin Decl., Ex. 30 (deposition tr. of Maslamani, dated Dec. 30, 2001) ("Maslamani Tr.") at 19, 20, 22, 27 [Dkt. No. 342-1]. He further testified that, although his name was on the January 2001 custodial statement, he hadn't signed it, id. at 11; what was written in it was incorrect, id. at 22; and that he "didn't say anything to the police about" the NII attack. Id. at 23.
Maslamani was prosecuted for and convicted of involvement in other attacks against Israelis but was never prosecuted for or convicted of any involvement in the NII attack. See SOMF 18-19.
The second set of custodial statements on which Plaintiffs rely consists of four separate written statements made by Force 17 officer Bashar Al Khatib ("Al Khatib") to Israeli police in April 2002. Each of these statements is different. In the first statement, given April 11, 2002, Al Khatib confessed involvement in the previously mentioned French Hill shooting and three other shooting incidents but did not mention any participation in the NII attack. See Tolchin Decl., Ex. 9 (custodial statement of Al Khatib, dated April 11, 2002) [Dkt No. 331-9].
In the second statement, given a day later on April 12, 2002, Al Khatib stated that he was "prepared to tell you what I did not say yesterday, " and went on to say that, on a direct order from Damara, he had accompanied Abu Halawa and another individual named Omar Karan to East Jerusalem where the NII was located and served as a lookout while Abu Halawa carried out the attack on the NII. Tolchin Decl., Ex. 10 (custodial statement of Al Khatib, dated April 12, 2002) at 1-3 [Dkt. No. 331-10].
In his third statement, given April 23, 2002, Al Khatib recanted the April 12 statement in its entirety as it related to the NII shooting and denied any connection to that attack. See Tolchin Decl., Ex. 11 (custodial statement of Al Khatib, dated April 23, 2002) [Dkt. No. 331-11] at 4 ("In my previous statement to the police I said that I participated in the shooting attack at the national insurance office in East Jerusalem, but this is not correct, I did not participate in this attack and I just stated this and I have no connection to this attack.").
Finally, in his fourth statement, on April 24, 2002, Al Khatib again disclaimed all prior statements regarding the NII attack and gave yet another version of his connection to the attack. In this version, he wrote that Abu Halawa phoned him on October 30, 2000, to ask for assistance transporting a vehicle through an Israeli checkpoint. He stated further that when he met with Abu Halawa later that day, Abu Halawa told him that he (Abu Halawa), had carried out an attack at the NII with two other individuals at the direction of regional Force 17 commander Mahmoud Damara ("Damara"). See Tolchin Decl., Ex. 12 (custodial statement of Al Khatib, dated April 24, 2002) at 1-2 [Dkt. No. 331-12].
Like Maslamani, Al Khatib subsequently denied the truth of his custodial statements as they related to the NII attack. He testified at his deposition in this case that he provided the statements to Israeli police because "I was under torture, and I was threatened regarding my wife and kids.... So that was the only way out for me is to write this[.]" Tolchin Decl., Ex. E (deposition tr. of Al Khatib, dated Dec. 5, 2011) ("Al Khatib Tr.") at 25:21-25 [Dkt. No. 330-5]. When asked whether he had had "any communication with Abu Halawa about [the NII] operation, " he responded, "No. Not - not once, " and further stated that "the entire National Insurance case, we have nothing to do with it." Id. at 24:4-6, 28:11-13.
Like Maslamani, Al Khatib was prosecuted and convicted, for his involvement in another attack involving Israelis but was never prosecuted for or convicted of any involvement in the NII attack. SOMF ¶ 13.
B. Procedural Background
On April 18, 2001, Plaintiffs filed this action against Defendants PA and PLO, as well as eleven of their current and former employees (the "Individual Defendants"), seeking compensation for Gilmore's death under the ATA and various common law theories. See generally Compl.
Defendants PA and PLO and the Individual Defendants initially failed to answer the Complaint, prompting the Court to enter a default. On January 29, 2002, however, they appeared through counsel and moved to vacate their default and to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b). After granting the Motion to Vacate, the Court denied Defendants PA and PLO's Motion to Dismiss but granted the Individual Defendants' Motion to Dismiss for lack of personal jurisdiction. See Gilmore v. Palestinian Auth. , 422 F.Supp.2d 96 (D.D.C. 2006).
Defendants PA and PLO then fired their attorneys and failed to file an Answer to the Complaint, prompting the Court to enter a second default against them on January 29, 2007 [Dkt. No. 92]. They subsequently retained new counsel and, on November 15, 2007, filed a Motion to Vacate'the second entry of default, which the Court granted on December 28, 2009. See Gilmore v. Palestinian Auth. , 675 F.Supp.2d 104, 111-13 (D.D.C. 2009) ("Gilmore I").
The parties then entered a two and-a-half year period of discovery, during which Plaintiffs took nine depositions, eight of which were non-party witness depositions conducted pursuant to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters ("Hague Convention"). These included the December 2001 depositions of Maslamani, Mahmoud Mater, and Ziad Wahadan; the December 2011 depositions of Al Khatib, Damara, Abdel Karim Aweis ("Aweis"), and National Insurance Institute designee Ya'akov Aravot; and the June 2012 deposition of Israeli journalist Avi Issacharoff ("Issacharoff"), co-author of the book The Seventh War, How We Won and Why We Lost the War with the Palestinians ("The Seventh War"), which, as discussed infra, contains a passage implicating Abu Halawa as the gunman in the NII attack.
On August 9, 2012, Defendants filed the instant Motion for Summary Judgment, arguing, inter alia, that after more than two years of fact discovery, Plaintiffs' only evidence to support their core theory that Abu Halawa killed Gilmore is inadmissible hearsay. See generally Defs.' Mot. [Dkt. No. 285].
Plaintiffs did not immediately oppose Defendants' Motion but instead, on September 6, 2012, moved under Fed.R.Civ.P. 56(d) for additional time to complete discovery. See generally Pls.' Mot. for Relief Pursuant to Rule 56(d) [Dkt. No. 290]. They explained that they were in the process of moving, in Israeli court, to compel Issacharoff to disclose the identity of sources who allegedly told him that Abu Halawa was the gunman in the NII attack. Id. at 1-2, 4, 6, 7-8, 10-11. They also argued that an extension of time was necessary "because expert discovery has not started yet.. and plaintiffs will oppose defendants' claim that the existing statements identifying Abu Halawa as the murderer are inadmissible, with expert foundational testimony showing that they are admissible." Id. at 2, 10-11. On September 19, 2012, the Court granted Plaintiffs' Motion for Relief Pursuant to Rule 56(d) and extended their time to oppose Defendants' Motion for Summary Judgment until after the completion of expert discovery and Issacharoff's deposition [Dkt. No. 297].
Six months later, on March 19, 2013, Defendants moved to resume briefing on their Motion for Summary Judgment, noting that Plaintiffs had withdrawn their motion in the Israeli court to compel Issacharoff to reveal his sources and that expert discovery was at a standstill because Plaintiffs had not provided any expert disclosures [Dkt. No. 298].
While that motion was pending, on April 19, 2013, Plaintiffs filed a Motion to Compel Production of Late-Disclosed Documents [Dkt. No. 303]. On June 6, 2013, after reviewing in camera the documents Plaintiffs sought to compel, the Court denied the Motion to Compel and set dates for the completion of summary judgment briefing [Dkt. No. 314]. Thereafter, on October 1, 2013, Plaintiffs filed their Opposition to Defendants' Motion for Summary Judgment [Dkt. No. 329]. On October 25, 2013, Defendants filed their Reply [Dkt. No. 341].
II. LEGAL STANDARDS
A. The ATA
The civil liability provision of the ATA states that any United States national who is injured "by reason of an act of international terrorism, " or that individual's "estate, survivors, or heirs, " may sue in any "district court of the United States and shall recover threefold the damages he or she sustains." 18 U.S.C. § 2333(a). An act of "international terrorism" is defined to include 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[.]
18 U.S.C. § 2331(1).
"In other words, to prevail [on a civil ATA claim], a plaintiff must prove that the defendant would have violated any one of a series of predicate criminal laws had the defendant acted within the jurisdiction of the United States." Estate of Parsons v. Palestinian Auth. , 651 F.3d 118, 122 (D.C. Cir. 2011) ("Estate of Parsons II"). In addition, the plaintiff must meet the territorial requirements set forth in Section 2331((1)(C) and prove that the conduct constituting the predicate criminal offense satisfies one of three intent requirements in Section 2331(1)(B). 18 U.S.C. § 2331(1).
B. Standard on Summary Judgment
Summary judgment should be granted only if the movant establishes that there is no genuine dispute as to a material fact and that the case may be resolved as a matter of law. Fed.R.Civ.P. 56(a). A fact is "material" if a dispute over it might affect the outcome of the suit under governing law; a dispute is "genuine" if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party.'" Holcomb v. ...