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Shatsky v. Palestine Liberation Organization

United States District Court, District of Columbia

June 20, 2017

SHABTAI SCOTT SHATSKY, Plaintiffs,
v.
PALESTINE LIBERATION ORGANIZATION and PALESTINIAN AUTHORITY, Defendants.

          MEMORANDUM OPINION [DKTS. ##247, 340]

          RICHARD J. LEON United States District Judge

         On February 16, 2002, a suicide bomber detonated an explosive device inside a crowded pizzeria in the West Bank village of Karnei Shomron. The blast killed two people, both U.S. nationals, and wounded thirty others, including four other U.S. nationals. The U.S. victims and their personal representatives initiated the instant suit against the Palestinian Authority ("PA") and the Palestine Liberation Organization ("PLO") (collectively, "defendants"), alleging that the bombing was enabled by those entities, and asserting violations of the Anti-Terrorism Act, 18 U.S.C. §§ 2331-2339D, and related common law torts. Before the Court is defendants' Motion for Summary Judgment [Dkt. #247]. Also before the Court is plaintiffs' Motion to Strike Defendants' Personal Jurisdiction Argument from Defendants' Supplemental Brief in Support of Summary Judgment and for Leave to File Supplemental Summary Judgment Briefing [Dkt. #340]. Upon consideration of the pleadings, relevant law, and the entire record herein, the Court will DENY plaintiffs' motion, GRANT defendants' motion, and enter judgment for the defendants.

         BACKGROUND

         A. Factual Background [1]

         On February 16, 2002, Sadeq Ahed Mahmoud Abdel Hafez ("Hafez" or "Sadeq Hafez") detonated an explosive device that killed Rachel Thaler and Keren Shatsky, both U.S. nationals. Pls.' Reconstituted Statement of Mat. Facts ¶ 5 ("Pls.' SOF") [Dkt. #331]; Defs.' Resp. to Pls.' Reconstituted Statement of Purported Mat. Facts ¶ 5 ("Defs.' Resp. SOF") [Dkt. #332-1]; Defs.' Statement of Mat. Facts ¶ 7 ("Defs.' SOF") [Dkt. #247-5]; Pls.' Resp. to Defs.' Statement of Mat. Facts ¶ 7 ("Pls.' Resp. SOF") [Dkt. #331]. It injured U.S. nationals Leor Thaler, Hillel Trattner, Steven Braun, and Chana Friadman. Defs.' SOF ¶ 7; Pls.' Resp. SOF ¶ 7. It also wounded Ronit Trattner, Defs.' SOF ¶ 7; Pls.' Resp. SOF ¶ 7, and, according to contemporaneous press reports, approximately twenty-five other persons who are not involved in this case, see Pls.' Ex. 22 [Dkt. #330-22].

         Defendants are the PA and PLO. The PA is a government established by the 1993 Oslo Accords between Israel and the PLO that administers civilian and internal security services in parts of the West Bank and the Gaza Strip. Defs.' SOF ¶ 2; Pls.' Resp. SOF ¶ 2; Livnat v. Palestinian Auth., 851 F.3d 45, 47 (D.C. Cir. 2017). The PLO was founded in 1964 by Egypt and the Arab League and is the international representative of the Palestinian people. Defs.' SOF ¶ 1; Pls.' SOF ¶ 14. It is recognized by the United States as a Foreign Mission pursuant to Section 205 of the Foreign Missions Act, 22 U.S.C. § 4305. See In re Designation and Determination, Pub. Notice 2035, 59 Fed. Reg. 37121-03 (U.S. Dep't of State, July 20, 1994). The PLO is comprised of seven "factions" including, as relevant here, the Popular Front for the Liberation of Palestine ("PFLP"). Pls.' SOF ¶ 2; Defs.' Resp. SOF ¶ 2. The PFLP has been designated by the United States as a Foreign Terrorist Organization pursuant to Section 219 of the Immigration and Nationality Act, 8 U.S.C. § 1189. Pls.' SOF ¶ 10; Defs.' Resp. SOF ¶ 10; In re Review of the Designation of Popular Front for the Liberation of Palestine (and Other Aliases) as a Foreign Terrorist Organization, Pub. Notice 9124, 80 Fed. Reg. 25766-01 (U.S. Dep't of State, Apr. 27, 2015).[2]

         Plaintiffs believe the Karnei Shomron bombing was planned and carried out by the PFLP using resources provided by the PA and PLO. Pls.' SOF ¶¶ 1-5. Plaintiffs allege that the "mastermind behind the attack" was a "known PFLP military leader" named Ra'ed Nazal. Pls.' SOF ¶ 7. Several facts about Nazal are undisputed. He was hired by the PA as a Captain in the Preventive Security Service ("PSS") sometime prior to the bombing; killed during an Israeli military raid (apparently unconnected to the events at issue in this case) in April 2002; and posthumously promoted by the PA to the rank of Major. Pls.' SOF ¶¶ 9, 26, 36-37; Defs.' Resp. SOF ¶¶ 9, 26, 36-37. It is also undisputed that Nazal's employment with the PSS entitled him to receive a salary from the PA even though he never reported to work, never received a uniform, and never was available to receive any assignment. Pls.' SOF ¶ 28; Defs.' Resp. SOF ¶ 28. According to defendants, the purpose of this no-show arrangement "was to control anti-Israeli violence by bringing suspected and/or convicted militants inside the security or police forces where there would be a better chance of reforming their behavior." Defs.' Resp. SOF ¶ 28. Plaintiffs, of course, disagree; they say Nazal's "job" was structured by the PA in a manner designed to leave him free to pursue terrorist activities with the PFLP. Pls.' Reconstituted Mem. of Law in Opp'n to Defs.' Mot for Summ. J. 11 ("Pls.' Mem.") [Dkt. #331]; Pls.' SOF ¶ 28. Plaintiffs allege that Nazal used this free time to plan the bombing and to recruit and prepare Hafez as the bomber. Pls.' SOF ¶¶ 7-8.

         Plaintiffs' theory that Nazal planned the bombing on behalf of the PFLP is based primarily on the statements of two individuals. The first is a custodial statement given to Israeli police by an individual named Mohammad Wasef Nazal ("Wasef" or "Mohammad Wasef'), an alleged member of the PFLP. In this statement, Wasef stated that he introduced Sadeq Hafez to Nazal in or about the first of part of 2000, and that he also introduced other potential suicide bombers to Nazal. Pls.' Ex. 13 [Dkt. #330-13]. Wasef stated that Hafez carried out the attack "in the name of the Popular Front" and that Nazal sent Hafez to "the Balata Refugee Camp and there [Nazal's] friend ... prepared Sadeq [Hafez] to carry out the attack and placed the explosive belt on Sadeq's body." Pls.' Ex. 13, at 3. The second statement is the deposition testimony of Ibrahim Abdullah Hamad Dahbour ("Dahbour"), Deputy Director of the PA's General Intelligence Service ("GIS") Qalqilya Governate. Dahbour testified that there was information in GIS files and in media reports connecting Nazal and Hafez to the bombing and to each other. Pls.' Ex. 4 [Dkt. #330-4]. He also testified that an alleged militant named Jamal Hindi was with Hafez prior to the bombing. Pls.' Ex. 4, at 141:22-142:1. In addition to the statements of these two individuals, plaintiffs cite a PFLP website praising Nazal generally as a martyr for the Palestinian cause. Pls.' Ex. 17 [Dkt. #330-17].

         The PA and PLO provided some funding to the PFLP and to certain individuals during the relevant time periods. See Pls.' Mem. 10-18. Specifically, the PLO paid rent for the PFLP office in Qalqilya, a city in close geographical proximity to Karnei Shomron, from June 2000 through May 2002. Pls.' SOF ¶¶ 40-43; Defs.' Resp. SOF ¶¶ 40-43. This payment was approved by Yasser Arafat. Pls.' SOF ¶¶ 19, 41, 43; Defs.' Resp. SOF ¶¶ 19, 41, 43. The PLO also paid for a car and apartment for Abdel Rahim Malouh, the PFLP's representative to the PLO Executive Committee. Pls.' Mem. 29 (citing Pls.' Ex. 5); Defs.' Reconstituted Reply in Further Supp. of Their Mot. for Summ. J. 6 ("Defs.' Reply") [Dkt. #332]. The PA made payments to the families of Ra'ed Nazal and Sadeq Hafez following their deaths, and to the families of Mohammad Wasef and Jamal Hindi while they were detained in prison for unspecified activities. Pls.' SOF ¶¶ 5, 37, 50; Defs.' Resp. SOF ¶¶ 5, 37, 50.

         B. Procedural Background

         Plaintiffs filed this lawsuit on November 18, 2002. In addition to the PA and PLO, plaintiffs named various Syrian entities and individuals as defendants. See generally Compl. [Dkt. #3]. Only the PA and PLO now remain in this action.[3]

         At the outset of this lawsuit, the PA and PLO failed to answer the complaint, prompting the Clerk of Court to enter default against them in September 2003. The Court vacated the default in 2004, see Min. Order (June 23, 2004), and denied a motion to dismiss for lack of personal jurisdiction in 2005, see Min. Order (Feb. 7, 2005). Counsel for the PA and PLO subsequently informed the Court that they intended only to litigate the question of jurisdiction, possibly through an interlocutory appeal. See Tr. of Status Conf., at 11:21-12:1, 16:17-20 (Mar. 29, 2005) [Dkt. #56]. However, a motion seeking such an appeal was never filed, and in April 2005, plaintiffs again obtained an entry of default from the Clerk. Two years later, plaintiffs moved the Court for default judgment. Defendants, by then having obtained new counsel, opposed plaintiffs' motion, and the parties began discovery. Defendants moved to vacate the Clerk's entry of default. Plaintiffs, in turn, moved to compel continued discovery. In a bench ruling following oral argument, the Court denied plaintiffs' motion to compel continued discovery and ordered them to respond to defendants' motion to vacate. See Tr. of Mot. Hr'g at 23:3-8 (June 13, 2008) [Dkt. #95]. After briefing was complete, the Court again held oral argument, ultimately vacating the Clerk's second entry of default in a published memorandum opinion. See Shatsky v. Syrian Arab Republic, 795 F.Supp.2d 79, 85 (D.D.C. 2011) ("Shatsky F).

         Following vacatur of the second default, the Court adopted on joint motion of the parties a scheduling order which mandated the completion of fact discovery by September 19, 2012. Sched. Order ¶ 5 (Sept. 19, 2011) [Dkt. #136]. Unfortunately, discovery did not proceed smoothly. Plaintiffs "waited until the eleventh hour" to produce responsive documents. Shatsky v. Syrian Arab Republic, 312 F.R.D.219, 221 (D.D.C. 2015) ("Shatsky IF). Indeed, although plaintiffs had, by the close of discovery, produced approximately 3, 000 pages of material in response to defendants' requests, "[t]his proved to be just the beginning of their discovery efforts." Id. at 222. "[I]n the weeks, months, and even years after discovery closed, plaintiffs furnished an additional 6, 627 pages of materials." Id. Meanwhile, and once again on joint motion by the parties, the Court had set a briefing schedule for summary judgment. See Min. Order (June 26, 2013). Plaintiffs' discovery tactics would soon upend that schedule.

         On August 12, 2013, defendants filed the instant motion for summary judgment, arguing that plaintiffs lack admissible evidence to prove the essential elements of their claims. See Mem. of P. & A. in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Mem.") [Dkt. #247-1]. Plaintiffs filed their first opposition on November 12, 2013. Appended to the opposition, however, was the Declaration of Attorney Robert J. Tolchin. Plaintiffs used this declaration as a vehicle to authenticate reams of late-produced documents relied upon in their brief. Defendants filed a motion for sanctions. Following briefing and oral argument on the motion for sanctions, the Court issued a published opinion ordering the exclusion of seventy-three late-filed exhibits. See Shatsky II, 312 F.R.D. at 229. The Court gave plaintiffs the opportunity to reconstitute their opposition without the excluded evidence. See Id. On January 29, 2016, plaintiffs filed their reconstituted opposition. See Pls.' Reconstituted Mem. of Law in Opp'n to Defs.' Mot for Summ. J. ("Pls.' Mem.") [Dkt. #331]. Defendants timely replied. See Defs.' Reconstituted Reply in Further Supp. of Their Mot. for Summ. J. ("Defs.' Reply") [Dkt. #332]. The Court held oral argument on July 26, 2016, inviting further briefing at the close of argument, which was promptly filed. See Ph: Suppl. To July 26, 2016 Hr'g ("Pls.' Suppl. Mem.") [Dkt.#337]; Defs.'Am. Suppl. Br. in Supp. of Summ. J. ("Defs.' Suppl. Mem.") [Dkt. #338-1]. The Court took defendants' motion under advisement shortly thereafter.

         STANDARD OF REVIEW

         A. Summary Judgment

         Summary judgment is appropriate only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A fact is material if it 'might affect the outcome of the suit under the governing law, ' and a dispute about a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         Upon the filing of a motion for summary judgment, "[t]he task of the [district] court is to review the factual material the parties present in support of and opposition to the motion, in light of the parties' legal claims and defenses, and assess whether the record contains disputes calling for resolution by a factfinder." Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016). "In making that determination, the court must view the evidence in the light most favorable [to the nonmoving party], draw all reasonable inferences in their favor, and eschew making credibility determinations or weighing the evidence." Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C. Cir. 2011) (internal quotation marks omitted). The movant may carry its initial burden by "pointing out to the district court[] that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Fed. R. Civ. P. 56(c)(1). The non-moving party must then come forward with "evidence showing that there is a triable issue as to an element essential to that party's claim." Arrington v. United States, 473 F.3d 329, 335 (D.C. Cir. 2006) (citing Celotex, 477 U.S. at 322). "While a nonmovant is not required to produce evidence in a form that would be admissible at trial, the evidence still must be capable of being converted into admissible evidence." Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000) (emphasis removed). "Otherwise, the objective of summary judgment-to prevent unnecessary trials-would be undermined." Id.

         District courts are assigned the task of deciding whether evidence would be admissible at trial. See Fed. R. Evid. 104(a); Gilmore v. Palestinian Interim Self-Gov't Auth., 843 F.3d 958, 968-69 (D.C. Cir. 2016) ("Gilmore II”). "In so deciding, the court is not bound by evidence rules, except those on privilege." Fed.R.Evid. 104(a). Decisions pertaining to the admissibility of evidence must be established by a preponderance of proof. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 n.10 (1993). If evidence is determined by the court to be hearsay, then, absent an applicable hearsay exception, the evidence is not capable of being converted into admissible evidence and cannot be considered by the court in evaluating a motion for summary judgment. See Gilmore II, 843 F.3d at 973 (citing Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007)); Gleklen, 199 F.3d at 1369 ("Verdicts cannot rest on inadmissible evidence.").

         B. The Anti Terrorism Act

         The ATA authorizes "[a]ny national of the United States injured in his or her person ... by reason of an act of international terrorism, or his or her estate, survivors, or heirs" to sue "in any appropriate district court of the United States and . . . recover threefold the damages he or she sustains." 18 U.S.C. § 2333(a). On its face, this cause of action requires a plaintiff to prove three things: (1) injury to a U.S. national, (2) causation, and (3) an act of international terrorism. The statute 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 ...

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