United States District Court, District of Columbia
MEMORANDUM OPINION [DKTS. ##247, 340]
RICHARD J. LEON United States District Judge
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
Factual Background 
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].
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).
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.
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].
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.
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
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)
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.
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.
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)).
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
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.").
The Anti Terrorism Act
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
(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 ...