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Schermerhorn v. State of Israel

United States District Court, District of Columbia

January 25, 2017

DAVID SCHERMERHORN, et al., Plaintiffs,
STATE OF ISRAEL, et al., Defendants.


          AMY BERMAN JACKSON United States District Judge

         Plaintiffs David Schermerhorn, Mary Ann Wright, Huwaida Arraf, and Margriet Deknopper have sued the State of Israel, and its Ministries of Defense, Foreign Affairs, Justice, and Public Security. On May 31, 2010, plaintiffs were passengers on the Challenger I, one of a group of ships seeking to draw public attention to, and to penetrate, the Israeli naval blockade of the Gaza Strip that was in effect at the time. They seek redress for the physical and emotional injuries that they allege they suffered when the Israeli military boarded their ship in international waters. See Compl. [Dkt. # 1] ¶¶ 1-2, 7, 22-23, 26.

         Plaintiffs allege that Israel's actions constituted war crimes in violation of international law, and their complaint includes four counts based on that theory: Torture (Count 1), Cruel and Inhuman Treatment (Count 2), Mutilation or Maiming (Count 3), and Intentionally Causing Serious Bodily Injury (Count 4). Id. ¶¶ 47-62. The complaint also includes five tort claims: Arbitrary Arrest and Detention (Count 5), False Imprisonment (Count 6), Assault and Battery (Count 7), Intentional Infliction of Emotional Distress (Count 8), and Conversion (Count 9). Id. ¶¶ 63-78.

         Israel is a foreign sovereign. Like any other country, it may only be sued in courts in the United States under certain limited circumstances defined by statute.[1] Israel maintains that there has been no waiver of its sovereign immunity that could make this case possible, and it has moved to dismiss on that ground and others under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). Defs.' Rule 12(b) Mot. to Dismiss [Dkt. # 17] (“Defs.' Mot.”); Defs.' Mem. in Supp. of Def.'s Mot. [Dkt. # 17-1] (“Defs.' Mem.”). Because the Court finds that Israel has not waived its sovereign immunity under either the tort exception or the terrorism exception to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602, et seq. (“FSIA”), it will grant defendants' motion and dismiss this case for lack of subject matter jurisdiction. This decision is based solely on the application of statutory principles, and it is not premised upon any consideration of, or determination concerning, whether either the blockade or the military action was justified.


         This case arises out of the history of the troubled relationship of the Israelis and the Palestinians, a complex and controversial subject that is not well suited to the sort of summarization that one would include in the “background” section of a legal opinion. Suffice it to say that the events described in the complaint relate to the ongoing dispute concerning the disposition of the Gaza Strip in the wake of the 1967 Six Day War, the creation of the Palestinian Authority in 1994, and the series of violent conflicts and fragile ceasefires that followed.[2]

         Plaintiffs were a part of what was called the “Gaza Freedom Flotilla, ” which aimed “to draw international public attention to the situation in the Gaza Strip and the effect of the blockade, to break the blockade, and to deliver humanitarian assistance and supplies to Gaza.” Compl. ¶ 24. The flotilla consisted of six vessels: the M.V. Mavi Marmara, a passenger ship sailing under the flag of the Union of Comoros; the M.V. Defne Y, a cargo vessel sailing under the flag of the Republic of Kiribati; the M.V. Gazze, a cargo vessel sailing under the flag of the Republic of Turkey; the M.V. Sfendoni, a passenger ship sailing under the flag of the Hellenic Republic of Greece; and the Challenger I, a passenger ship sailing under the flag of the United States of America. Compl. ¶ 25. Plaintiffs allege that on May 31, 2010, the IDF “unlawfully intercepted and attacked” the six vessels. Compl. ¶ 2. Since the claims in this case relate solely to the events that took place on the Challenger I, the Court will not set forth the facts concerning the interception of the other vessels.

         The Challenger I carried seventeen passengers, including crew; they were American, British, Irish, Australian, Dutch, Belgian, and Polish nationals who worked as humanitarian workers, medics, and journalists. Compl. ¶ 29. According to plaintiffs, the vessel was carrying humanitarian aid, including medical equipment and supplies, in addition to “a large amount of media equipment” such as video cameras, recorders, phones, and GPS locators. Id. ¶ 30.[3]Plaintiffs allege that all of the individuals on the flotilla, including those on the Challenger I, were “subject to security checks for weapons before departure, ” and that “[a]ll of the passengers and crew . . . were unarmed during their entire journey.” Id. ¶¶ 26, 31.

         On May 31, 2010, as the flotilla approached the shore, the Israeli navy took action to enforce the blockade of the Gaza Strip and board the vessels.[4] According to the complaint, the boarding of the Challenger I was marked by violence. See Compl. ¶¶ 41-46. Plaintiffs allege that “at least one stun grenade was used before the IDF soldiers sought to board” the ship. Id. ¶ 41. “The grenade exploded one foot from Plaintiff Schermerhorn's face, leaving him partly blinded in one eye.” Id. The complaint states that the soldiers fired paintball and rubber bullets directly at the passengers while they were boarding the vessel; plaintiff Deknopper was shot in the face with a rubber bullet that broke her nose, and another passenger was shot five times in the back with rubber bullets. Id. ¶ 42. Once onboard, the soldiers detained all of the passengers. Id. ¶ 43. Plaintiff Arraf alleges that he was “forcefully pulled off the stairs and forced to the deck, ” where a soldier “slammed [his head] against the deck” and stood on it. Id. Plaintiff Arraf and another passenger were “forced to kneel with tight handcuffs while hooded for an extended period of time, despite complaining of breathing difficulties.” Id.

         After the Israelis took control of the Challenger I, they directed the ship to the Israeli port of Ashdod. Compl. ¶ 38. Plaintiffs allege that while on route to Ashdod, they were assaulted, handcuffed, and forcibly detained; that they were denied toilets and medical care; and that their personal property, including “all media equipment and film footage, ” was confiscated and never returned. Id. ¶ 45. When the Challenger I arrived in Ashdod, “[s]everal passengers, including Plaintiff Wright[, ] were treated violently when they refused to leave the ship.” Id. ¶ 46.

         On January 11, 2016, plaintiffs filed this nine-count action against the State of Israel and its Ministries of Defense, Foreign Affairs, Justice, and Public Security. Compl. Count 1, brought by plaintiffs Arraf and Deknopper, alleges that defendants committed the war crime of torture when they banged plaintiff Arraf's head against the deck, stood on her head, hooded her for an extended period of time, and groped her, and when they shot plaintiff Deknopper in the face with a rubber bullet. Compl. ¶¶ 48-51. In Count 2, all plaintiffs allege that they were subjected to the war crime of cruel and inhuman treatment. Id. ¶¶ 53-55. Plaintiff Schermerhorn alleges in Count 3 that the use of the grenade, which caused him to partially lose sight in one eye, constitutes the war crime of mutilation or maiming. Id. ¶¶ 57-59. Plaintiffs Schermerhorn, Arraf, and Deknopper allege in Count 4 that the IDF's conduct intentionally caused them serious bodily injury, a war crime under international law. Id. ¶¶ 61-62. All plaintiffs claim that they were subjected to arbitrary arrest and detention (Count 5), false imprisonment (Count 6), assault and battery at the hands of the IDF (Count 7), and the conversion of their personal property (Count 9). Id. ¶¶ 64- 73; 76-78. Finally, in Count 8, all plaintiffs seek damages for intentional infliction of emotional distress. Id. ¶ 75.

         Defendants moved to dismiss on August 8, 2016. Defs.' Mot.; Defs.' Mem. They argue principally that the Court lacks jurisdiction because Israel and its ministries are immune from suit under the FSIA, Defs.' Mem. at 12-28, and that even if Israel were not immune, the Court lacks jurisdiction under the political question doctrine and the act of state doctrine. Id. at 28-37. They also argue that each count in the complaint fails to state a claim under Rule 12(b)(6), and that the action should be dismissed under Rule 12(b)(2) under the doctrine of forum non conveniens so that the claims can be resolved in Israel. Id. at 37-45. Plaintiffs opposed the motion, Pls.' Mem. of P. & A. in Opp. to Defs.' Mot. [Dkt. # 22] (“Pls.' Opp.”), defendants replied in support of their motion, Defs.' Reply Mem. in Supp. of Defs.' Mot. [Dkt. # 23] (“Defs.' Reply”), and plaintiffs were granted leave to file a brief sur-reply. Pls.' Sur-Reply in Further Opp. to Defs.' Mot. [Dkt. # 26] (“Pls.' Sur-Reply”).

         On November 21, 2016, the United States submitted a Statement of Interest in this case pursuant to 28 U.S.C. § 517, taking the position “that neither exception to immunity invoked by plaintiffs removes Israel's immunity under FSIA in this case.” Statement of Interest of the U.S. [Dkt. # 28] (“SOI”). Each side had an opportunity to respond to the government's position. Min. Order (Nov. 28, 2016); Pls.' Resp. to SOI [Dkt. # 29] (“Pls.' SOI Opp.”). Because the Court agrees with defendants and the United States that it lacks jurisdiction under the FSIA, the case will be dismissed and the Court need not reach any of the other issues.


         Before the Court may turn to the merits of plaintiffs' allegations, it must first ensure that it has jurisdiction to hear this case.

Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). In addition, “‘[i]t is axiomatic that subject matter jurisdiction may not be waived, and that courts may raise the issue sua sponte.'” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), quoting Athens Cmty. Hosp., Inc. v. Schweiker, 686 F.2d 989, 992 (D.C. Cir. 1982). Indeed, a federal court must raise the issue because it is “forbidden - as a court of limited jurisdiction - from acting beyond [its] authority.” Id., citing Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003).

         Under Federal Rule of Civil Procedure 12(b)(1), plaintiffs bear the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'” Akinseye, 339 F.3d at 971, quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

         In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). When considering a motion to dismiss for lack of jurisdiction, however, the court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).


         Under the Foreign Sovereign Immunities Act, “a foreign state is presumptively immune from the jurisdiction of United States courts, ” and “unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); see 28 U.S.C. § 1604 (“a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter”). The exceptions set forth in the statute provide “the sole basis for obtaining jurisdiction over a foreign state in the courts of this country.” OBB Personenverkehr AG v. Sachs, 136 S.Ct. 390, 393 (2015), quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989) (internal quotation marks omitted); see also Simon v. Republic of Hungary, 812 F.3d 127, 135 (D.C. Cir. 2016). Because “subject matter jurisdiction in any such action depends on the existence of one of the specified exceptions . . . [a]t the threshold of every action in a district court against a foreign state . . . the court must satisfy itself that one of the exceptions applies.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493-94 (1983); see also Belize Social Dev. Ltd. v. Government of Belize, 794 F.3d 99, 101 (D.C. Cir. 2015) (describing the FSIA's terms as “absolute”); Jerez v. Republic of Cuba, 775 F.3d 419, 423-24 (D.C. Cir. 2014), citing Mwani v. bin Laden, 417 F.3d 1, 15 (D.C. Cir. 2005). And given the “comprehensive” nature of the FSIA, “any sort of immunity defense made by a foreign sovereign in an American court must stand on the Act's text. Or it must fall.” Republic of Argentina v. NML Capital, Ltd., 134 S.Ct. 2250, 2255-56 (2014).

         I. The applicable ...

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