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Shatsky v. Palestine Liberation Organization

United States District Court, District of Columbia

November 16, 2017

SHABTAI SCOTT SHATSKY, et al., Plaintiffs,

          MEMORANDUM OPINION [DKT. #354]


         On June 20, 2017-following years of unnecessarily protracted litigation, distinguished, at times, by the parties' use of dilatory tactics rather than their commitment to "the just, speedy, and inexpensive determination of every action and proceeding, " Fed.R.Civ.P. 1-I granted summary judgment for defendants. The cornerstone of my ruling was the determination that plaintiffs lacked sufficient admissible evidence to prove the essential elements of their claims. Before the Court is plaintiffs' Motion to Alter or Amend Judgment ("Pls.' Mot.") [Dkt. #354], through which plaintiffs seek to introduce new evidence and alter that ruling. Upon consideration of the pleadings, relevant law, and the entire record herein, the Court will DENY plaintiffs' motion.


         The Court presumes familiarity with its prior opinions and will not belabor the facts. See, e.g., Shatsky v. Palestine Liberation Org., Civil Case No. 02-2280 (RJL), 2017 WL 2666111 (D.D.C. June 20, 2017) ("Shatsky IIF); Shatsky v. Syrian Arab Republic, 312 F.R.D. 219 (D.D.C. 2015) ("Shatsky IF); Shatsky v. Syrian Arab Republic, 795 F.Supp.2d 79 (D.D.C. 2011) ("Shatsky F). 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 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. Plaintiffs asserted violations of the Anti-Terrorism Act ("ATA"), 18 U.S.C. §§ 2331-2339D, and related common law torts.[1] As relevant here, plaintiffs' theory of liability posits that defendants proximately caused the bombing by paying a salary to Ra'ed Nazal, a Captain in the Palestinian Preventative Security Services, while structuring his no-show job in a manner that left him free to plan the Karnei Shomron bombing and recruit the suicide bomber. See Shatsky III, 2017 WL 2666111, at *2.

         On June 20, 2017, I granted summary judgment for defendants. As stated above, the cornerstone of my ruling was the determination that plaintiffs lacked sufficient admissible evidence to prove the essential elements of their claims. I found, among other things, that "no reasonable jury could conclude that the PA proximately caused the bombing by paying Nazal a salary" because plaintiffs had "identified no admissible evidence supporting their theory that Nazal planned the bombing." Id. at *9.[2] The instant Motion seeks to remedy this evidentiary deficiency by propounding new evidence which, in plaintiffs' view, "establishes] proof of Ra'ed Nazal's involvement in the Karnei Shomron bombing." Pls.' Mem. Supp. Mot. to Alter or Amend J. 4 ("Pls.' Mem.") [Dkt. #354-1].

         Plaintiffs' new evidence consists of statements made by an individual named Allam Kaabi during an audiovisual interview he gave on December 17, 2016. Kaabi is a member of the Central Committee for the Popular Front for the Liberation of Palestine ("PFLP"), a faction within the PLO that has been designated by the United States as a Foreign Terrorist Organization. See Shatsky III, 2017 WL 2666111, at *1. According to plaintiffs, Kaabi has a decades-long history of personal involvement in violent extremist and terrorist activities. See Pls.' Mem. 8-13.[3] The interview, which the Court has viewed in full, together with its English-language translation, see Pls.' Mot., Exs. 7 & 7A, Certified Translation and Video File [Dkt. #354-9], was streamed live on Facebook by the PFLP, see Pls.' Mot., Ex. 10, PFLP Facebook Page [Dkt. #354-12], and maintained in a video archive on that site, Pls.' Mot., Ex. 11, PFLP Facebook Page [Dkt. #354-13]. It is unclear from the exhibits and briefs whether Kaabi's interviewer was "in-house" with the PFLP or just a friendly member of the Palestinian press.

         In the interview, Kaabi recounts events occurring in 2001 and 2002 during the Second Intifada. Kaabi's narrative begins with the death of Abu Ali Mustafa, then Secretary General of the PFLP. According to Kaabi, Mustafa "planted a bomb inside a watermelon" that an unnamed individual then placed "on a Zionist bus in Jerusalem." Pls.' Mot., Ex. 7, Certified Translation, at 4. Israeli intelligence discovered the booby-trapped watermelon and killed Mustafa. Id. at 4-5. Within hours of Mustafa's death, members of the PFLP retaliated by killing a rabbi. Id. at 5. After that, the PFLP renamed its militant elements as the "Abu Ali Mustafa Brigades" and launched a campaign of terror attacks where, in Kaabi's words, "the cells fired at bypass roads, at vehicles of settlers, at settlements, at military posts and bases." Id. at 7-8. According to Kaabi, "[t]he most significant operation carried out by the Front was the assassination of Rehavam Ze'evi, " Israel's Minister of Tourism. Id. at 8.

         Kaabi also reports in his interview that PFLP cells began using suicide bombers in the wake of Mustafa's death. Kaabi's narrative describes three such attacks, including, of most relevance here, the bombing of the pizzeria in Karnei Shomron:

The first suicide attack was carried out in the settlement of Ariel by istish'hadi [suicide attacker] Shadi Nassar, a resident of Madama village in Nablus. He was recruited and prepared by Comrade Yamin Faraj. I think that he had been in jail and was a member of the Yamin Faraj cell. A lot of people were killed and injured in that operation, but the occupation chose not to reveal the number of those killed and injured in that operation.
After that, the Karnei Shomron operation was executed by comrade Raed Nazal from Qalqilya in coordination with the comrades in the Brigades in Nablus. It was a joint, distinguished effort. I think it was carried out by istish'hadi [suicide attacker] Sadeq Abd al-Hai. Many settlers were killed inside the settlement. After the operation the Israeli army attacked several Front headquarters in Nablus with aircraft and artillery fire.
The Brigades in Nablus was the first organization to carry out a suicide attack within the '48 borders - in Netanya's city market - after Operation Defensive Shield and after Sharon boasted that he had destroyed the resistance and that the resistance would not be heard of anymore, telling the Zionists to enjoy a long, undisturbed sleep.
The now-liberated comrade Duaa al-Jayyousi participated in the operation. I was among the members of the cell. . . .

Id. at 9 (bold emphasis added). Not surprisingly, plaintiffs seek to introduce the statement attributing the Karnei Shomron bombing to Ra'ed Nazal. They contend, naturally, that the admission of this statement would enable them to overcome the evidentiary deficiency identified in my prior opinion granting summary judgment for defendants.

         Plaintiffs are less than forthcoming, however, about the circumstances surrounding their discovery of the Kaabi interview. In their memorandum, they state that it was "recently discovered" by counsel. Pls.' Mem. 3. In response to questions raised by defendants, plaintiffs report that they "stumbl[ed] upon" the interview "shortly before the release of this Court's June 20, 2017 Memorandum Opinion." Pls.' Reply to Defs.' Opp'n to Pls.' Mot. to Alter or Amend J. 1 ("Pls.' Reply") [Dkt. #356]. In a footnote, they clarify that counsel "became aware" of the interview on May 22, 2017. Id. at 10-11 n.3. They also state that a rough draft of a translation was completed by May 25, 2017, and that counsel "was in the midst of determining whether the evidence would be admissible and therefore could and should be brought to the Court's attention" when my summary judgment opinion issued. Id. ...

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