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Livnat v. Palestinian Authority

United States District Court, D. Columbia.

February 11, 2015

RIVKA LIVNAT, et al., Plaintiffs
v.
THE PALESTINIAN AUTHORITY, Defendant

For RIVKA LIVNAT, Individually and as personal Representative of THE ESTATE OF BEN-YOSEF LIVNAT, NOAM LIVNAT, SHIRA LIVNAT, Individually and as the natural guardian of minor plaintiffs A.L., B.L., N.L., O.L, A. L., minor, B. L., minor, N. L., minor, O. L., minor, YEHUDA LIVNAT, RACHEL LUZ, ODEYA GORDON, NAVAH ALFASI, ORA BINYAMIN, Plaintiffs: Andrew David Levy, Jessica Paulie Weber, PRO HAC VICE, BROWN, GOLDSTEIN & LEVY LLP, Baltimore, MD; Joseph B. Espo , BROWN, GOLDSTEIN & LEVY LLP, Baltimore, MD.

For PALESTINIAN AUTHORITY, a/k/a The Palestinian Interim Self-Government Authority, Defendant: Charles FrancisBenedict McAleer, Jr., Dawn E. Murphy-Johnson, Laura G. Ferguson, LEAD ATTORNEYS, MILLER & CHEVALIER, CHARTERED, Washington, DC.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge.

This action arises from a machine-gun attack on a group of worshippers at a Jewish holy site known as Joseph's Tomb, near the West Bank city of Nablus. One of those worshippers, Ben-Yosef (" Benyo" ) Livnat, was killed and several others were injured in the shooting, which was carried out allegedly by Palestinian Authority (" PA" ) security personnel. Yehuda Livnat, Benyo's brother, was also present at the scene of the attack. Plaintiffs are members of Ben-Yosef Livnat's family, including his parents, his siblings, his wife, and his several minor children.[1] Compl. ¶ ¶ 2-6. The defendant, the Palestinian Authority, is a non-sovereign government providing certain government services in the West Bank. Id. ¶ 7. Members of the Livnat family who are U.S. citizens and residents of Israel[2] bring two claims against the Palestinian Authority under the civil liability provision of the Anti-Terrorism Act (" ATA" ), 18 U.S.C. § 2333(a).[3] These family members bring a claim under section 2333(a) under a vicarious liability theory and a claim for aiding and abetting international terrorism. In addition, certain plaintiffs bring several nonfederal claims pursuant to the law of the State of Israel. Rivka Livnat, on behalf of the estate of Ben-Yosef Livnat, brings a claim for battery against the Palestinian Authority. Yehuda Livnat brings a claim for assault against the Palestinian Authority. Finally, all plaintiffs bring a claim for negligence against the Palestinian Authority.

Before the Court is Defendant Palestinian Authority's [13] Motion to Dismiss, pursuant to Rules 12(b)(2) (lack of personal jurisdiction), 12(b)(3) (improper venue), 12(b)(5) (insufficient service of process), and 12(b)(6) (failure to state a claim upon which relief can be granted).[4] Also before the Court is Plaintiffs' [17] Cross-Motion, in the Alternative, for Leave to Take Jurisdictional Discovery. Upon consideration of the pleadings,[5] the relevant legal authorities, and the record as a whole, the Court GRANTS the Palestinian Authority's [13] Motion to Dismiss and DENIES Plaintiffs' [17] Cross-Motion. The Court concludes that it has no personal jurisdiction over the Palestinian Authority with respect to the claims at issue in this action. The Court also concludes that jurisdictional discovery is not warranted. Therefore, the Court does not consider Defendant's other arguments in favor of dismissal. Accordingly, the Court DISMISSES all claims against Defendant Palestinian Authority and dismisses this action in its entirety.

I. BACKGROUND

For the purposes of this motion, the Court accepts as true the factual allegations in Plaintiffs' Complaint. The Court does " not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged." Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315, 411 U.S.App.D.C. 105 (D.C. Cir. 2014). The Court recites the facts pertaining to the issues that the Court addresses with respect to the pending motion, focusing on those facts relevant to the jurisdictional inquiry in which the Court engages.

On April 24, 2011, Ben-Yosef Livnat (also known as " Benyo" ) and Yehuda Livnat,[6] together with 15 others, visited Joseph's Tomb, a Jewish holy site, near the West Bank city of Nablus. Compl. ¶ 15. Benyo and other Jewish worshippers entered the building housing Joseph's Tomb to pray while Yehuda and another person remained in the vehicles. Id. ¶ 16. After Benyo and others entered the building, Palestinian Authority security forces led by Mohammed Saabneh allegedly began firing their automatic weapons. Id. ¶ 17. Benyo and the other visitors immediately exited the building, running to their vehicles and attempting to drive off. Id. ¶ 18. As the visitors were attempting to leave, Saabneh allegedly announced to the other security personnel that he intended to fire at the vehicles and that he intended to cause death. Id. ¶ 19. Saabneh and Salah Hamed, another member of the Palestinian Authority security forces, allegedly fired their weapons at the vehicles at close range. Id. Three of the people in one of the vehicles were wounded. Id. Noaf Wael, one of Saabneh's subordinates, allegedly opened fire at close range at another vehicle, in which Benyo and Yehuda were seated. Id. ¶ ¶ 20-21. Benyo was shot in the neck while Yehuda was sitting next to him, and then they rushed to an infirmary by car. Id. ¶ 21. Benyo later died from his wounds. Id. ¶ 22. As a result of the loss, Benyo's immediate family members claim they have suffered emotionally and struggle with their grief and loss. Id. ¶ 23. After the group of worshippers left, the Palestinian Authority security forces, under orders from Saabneh, allegedly attempted to remove evidence of the shooting from the scene of the attack by replacing the spent shell casings with rocks, in order to give the appearance that the security forces had been attacked by people throwing rocks at them. Id. ¶ 24. After the attack, a Palestinian Authority spokesperson justified the attack in an interview on Israeli radio. Id. ¶ 47.

Plaintiffs further allege that the attack described above is part of the Palestinian Authority's policy and practice of encouraging acts of terror and using terrorism to influence U.S. public opinion and policy.[7] Compl. 14; see id. ¶ ¶ 40-44; Addicott Decl. ¶ ¶ 3-4. Specifically, Plaintiffs allege that the attack underlying this action was intended to influence the policies of the Israeli government and of the United States government regarding the right of Israelis to visit Jewish religious sites in the West Bank or to visit or live in the West Bank, as well as the policies of both governments regarding peace negotiations with the Palestinian Authority and Israel's presence in the West Bank.[8] Compl. ¶ 51.c. In support of that claim and in support of jurisdiction, Plaintiffs allege that the Palestinian Authority operates an office in the United States, conducts public relations and other activities, and receives hundreds of millions of dollars in aid from the United States each year. Compl. ¶ 10. In response, Defendant argues that the office in question is the office of the General Delegation of the PLO to the U.S. See Def.'s Mot. to Dismiss at 12; Declaration of Ambassador Maen Areikat (" Areikat Decl." ), ECF No. 13-2, ¶ 15. Defendant describes the Palestine Liberation Organization, or PLO, as " an umbrella organization of various political parties and represents the nationalist aspirations of Palestinians, including those in the diaspora." Areikat Decl. ¶ 14. Defendant argues that the office is not an office of the Palestinian Authority, and that, in fact, the Palestinian Authority, a non-sovereign government, is prohibited from having embassies, missions, or consulates abroad. See Def.'s Mot. to Dismiss at 12; Areikat Decl., ¶ 15.

II. LEGAL STANDARD

When personal jurisdiction is challenged under Rule 12(b)(2), the plaintiff bears the burden of establishing a factual basis for asserting personal jurisdiction over a defendant. See Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456, 282 U.S.App.D.C. 295 (D.C. Cir. 1990). At this stage, Plaintiffs " can satisfy that burden with a prima facie showing.'" Mwani v. bin Laden, 417 F.3d 1, 7, 368 U.S.App.D.C. 1 (D.C. Cir. 2005) (quoting Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 424, 292 U.S.App.D.C. 240 (D.C. Cir. 1991)). To do so, the plaintiff cannot rest on bare allegations or conclusory statements but " must allege specific acts connecting [the] defendant with the forum." Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524, 348 U.S.App.D.C. 238 (D.C. Cir. 2001) (internal quotation marks omitted). " To make such a showing, the plaintiff is not required to adduce evidence that meets the standards of admissibility reserved for summary judgment and trial[; ]" but rather, the plaintiffs may " rest [their] arguments on the pleadings, 'bolstered by such affidavits and other written materials as [they] can otherwise obtain.'" Urban Inst. v. FINCON Servs., 681 F.Supp.2d 41, 44 (D.D.C. 2010) (quoting Mwani, 417 F.3d at 7).

In order to obtain jurisdictional discovery a " plaintiff must have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant." Caribbean Broad. Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090, 331 U.S.App.D.C. 226 (D.C. Cir. 1998); see also Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F.Supp.2d 1, 11 (D.D.C. 2009) (holding that [j]urisdictional discovery ... is justified only if the plaintiff reasonably 'demonstrates that it can supplement its jurisdictional allegations through discovery.'" ) (quoting Kopff v. Battaglia, 425 F.Supp.2d 76, 89 (D.D.C. 2006)). " Mere conjecture or speculation" is not enough to justify jurisdictional discovery. FC Investment Group LC v. IFX Markets Ltd., 529 F.3d 1087, 1094, 381 U.S.App.D.C. 383 (D.C. Cir. 2008).

III. DISCUSSION

The Palestinian Authority moves to dismiss this action under Rule 12(b)(2) for lack of personal jurisdiction, arguing that it has insufficient contacts with the United States to support jurisdiction. Because the Court agrees that there is neither general jurisdiction over the Palestinian Authority because of its contacts with the United States nor specific jurisdiction over the Palestinian Authority with respect to the specific claims in this action, the Court does not reach the Palestinian Authority's other arguments for dismissal.

A. Framework and Roadmap

Plaintiffs only claim that this Court has jurisdiction over the Palestinian Authority pursuant to Rule 4(k)(2),[9] which states that service establishes jurisdiction if " the defendant is not subject to jurisdiction in any state's courts of general jurisdiction" and " exercising jurisdiction is consistent with the United States Constitution and laws." Fed.R.Civ.P. 4(k)(2). To use this provision, Plaintiffs are not required to show that there is no jurisdiction in any state court over the Palestinian Authority. Mwani, 417 F.3d at 11. Because the Palestinian Authority " does not concede to jurisdiction in another state, [this C]ourt may use 4(k)(2) to confer jurisdiction.'' Id. " Whether the exercise of jurisdiction is 'consistent with the Constitution' for purposes of Rule 4(k)(2) depends on whether a defendant has sufficient contacts with the United States as a whole to justify the exercise of personal jurisdiction under the Due Process Clause of the Fifth Amendment." Id. Accordingly, the inquiry in this case is whether the Palestinian Authority has sufficient contacts with the United States as a whole.

There are two types of personal jurisdiction that a court can exercise, general jurisdiction and specific jurisdiction. Both are at issue in this action.

Regarding general or all-purpose jurisdiction, a court may assert jurisdiction over a foreign defendant " 'to hear any and all claims against [it]' only when the corporation's affiliations with the State in which suit is brought are so constant and pervasive 'as to render [it] essentially at home in the forum state.'" Daimler AG v. Bauman, 134 S.Ct. 746, 751, 187 L.Ed.2d 624 (2014) (quoting Goodyear Dunlop Tire Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011)); see also Goodyear, 131 S.Ct. at 2853 (quoting International Shoe v. Washington, 326 U.S. 310, 318, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (General jurisdiction consists of '' instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.'' ).[10]

" Specific jurisdiction, on the other hand, 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, 131 S.Ct. at 2851 (citation omitted). Specific jurisdiction exists " where the corporation's in-state activity is 'continuous and systematic' and that activity gave rise to the episode-in-suit." Id. at 2853 (quoting International Shoe, 326 U.S. at 317) (emphasis in original). In addition, in certain circumstances, the " commission of certain 'single or occasional acts' in a State may be sufficient to render a ...


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