Biton v. Palestinian Interim Self-Government Auth.

• Decision Date: 18 March 2004
• Docket Number: No. CIV.A. 01-0382(RMC).,CIV.A. 01-0382(RMC).
• Citation: 310 F.Supp.2d 172
• Parties: Avigail Lewis BITON, et al., Plaintiffs, v. PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

310 F.Supp.2d 172

Avigail Lewis BITON, et al., Plaintiffs, v. PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY, et al., Defendants.

No. CIV.A. 01-0382(RMC).

United States District Court, District of Columbia.

March 18, 2004.

COPYRIGHT MATERIAL OMITTED

David Jacob Strachman, McIntyre, Tate, Lynch & Holt, Providence, RI, Richard Horowitz, New York, NY, for Plaintiffs.

Maher H. Hanania, Hanania Kheder & Nawash, Falls Church, VA, for Defendants.

MEMORANDUM OPINION

COLLYER, District Judge.

Avigail Lewis Biton, individually and on behalf of her husband's estate and her children, and Rachel Asraf bring suit under the Antiterrorism Act of 1991 ("ATA"), 18 U.S.C. § 2333, and various tort theories against the Palestinian Interim Self-Government Authority, also known as the Palestinian Authority or the Palestinian National Authority ("PA"); the Palestine Liberation Organization ("PLO"); Yasser Arafat, president of the PA and chairman of the PLO; two senior members of the Palestinian Preventive Security Service ("PPSS"); two members of the Palestinian Police Service ("PPS"); and 99 "John Does" for their alleged involvement in the bombing of a school bus in the Gaza Strip on November 20, 2000, that killed two passengers (including Gabriel Biton, husband to Ms. Biton and the father of her children) and wounded nine others (including Ms. Asraf). Pending before the Court is the defendants' motion to dismiss pursuant to Rules 12(b)(1), (b)(2), and (b)(6) of the Federal Rules of Civil Procedure. The defendants assert a lack of personal jurisdiction over the five named individual defendants and the PA; immunity as a sovereign state and a lack of subject matter jurisdiction under the ATA; a lack of subject matter jurisdiction for the Biton family's claims under the ATA and state law; and non-justiciability. The defendants also remark that the conduct in question might be deemed an "act of war" not subject to the ATA, and that Palestinian resistance and self-defense against Israel do not constitute terrorism. The plaintiffs, not surprisingly, oppose dismissal on these grounds.

After a full consideration of the parties' briefs, the entire record, and applicable law, the Court finds that it lacks personal jurisdiction over the named individual defendants but that it may exercise jurisdiction over the PA and PLO. The named individual defendants therefore will be dismissed. The remainder of the motion to dismiss will be denied.

I. BACKGROUND

For purposes of ruling on the instant motion to dismiss, the underlying facts of this case may be simply stated: at approximately 7:30 a.m. on November 20, 2000, a roadside device exploded near a bus that was transporting elementary school children and their teachers from Kfar Darom, an Israeli settlement in the southern Gaza Strip, towards Gush Katif.¹ The plaintiffs contend that the defendants are responsible for this bombing and the resulting deaths and injuries.² At issue now is the jurisdiction of the Court to hear and decide this case. On this preliminary issue, the plaintiffs' respective causes of action and the parties' relationships to the United States are critical.

Plaintiff Avigail Lewis Biton is an American citizen, the widow of Gabriel Biton, and the mother of the Biton children. She sues in her individual capacity under the ATA, which established a federal cause of action for damages resulting from terrorist attacks in foreign countries. Specifically, that statute provides:

Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees.³

18 U.S.C. § 2333(a). Ms. Biton and her children sue for wrongful death, negligence, intentional and negligent infliction of emotional distress, and battery under federal common law. The amended complaint does not allege that any Biton family member, save for Ms. Biton, is or was an American citizen. Plaintiff Rachel Asraf is an American citizen who sues for herself under the ATA and for negligence, intentional and negligent infliction of emotional distress, battery, and assault.

The defendants are the PA, the PLO, and Yasser Arafat (collectively "the Palestinian leadership"); three senior Palestinian officials, Muhammed Dahlan, allegedly the commander in charge of the PPSS, Rashid Abu Shabak, allegedly the deputy commander of the PPSS, and Ghazi Jabali, allegedly the regional commander in the Gaza Strip of the PPS; Muhammed Eid Abdel Kadar Issa, allegedly a member of the PPS and an agent of the "Fatah" faction of the PLO, as well as the "Tanzim" terrorist unit; and John Does 1-99, who allegedly planned and carried out the bombing with the other defendants. None of the named individual defendants is alleged to have any presence, asset, or activity in the United States, except for President Arafat's occasional visits to the United Nations in New York City. The defendants assert that the PA also "is not present in the U.S." Defs.' Mot. to Dismiss at 7.

II. LEGAL STANDARDS

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiffs bear the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction to hear this case. Jones v. Exec. Office of the President, 167 F.Supp.2d 10, 13 (D.D.C.2001). In deciding such a motion, the Court must accept as true all of the factual allegations set forth in the amended complaint; however, such allegations" `will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C.2001) (quoting 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1350). The Court may consider matters outside the pleadings. Lipsman v. Sec'y of the Army, 257 F.Supp.2d 3, 6 (D.D.C.2003).

To thwart dismissal under Rule 12(b)(2) of the Federal Rules of Civil Procedure, the plaintiffs must establish personal jurisdiction over each defendant. To this end, the Court may look outside the allegations of the amended complaint. Helmer v. Doletskaya, 290 F.Supp.2d 61, 65 (D.D.C.2003). "[T]he Court must accept Plaintiff[s'] claims as true in ruling on a Rule 12(b)(2) motion, unless they are directly contradicted by an affidavit ...." Novak-Canzeri v. Turki Bin Abdul Aziz Al Saud, 864 F.Supp. 203, 206 (D.D.C.1994).

A motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the amended complaint. The Court must accept as true all of the plaintiffs' well-pled factual allegations and draw all reasonable inferences in favor of the plaintiff; however, the Court does not need to accept as true any of the plaintiffs' legal conclusions. Alexis v. District of Columbia, 44 F.Supp.2d 331, 336-37 (D.D.C.1999). "[An amended] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

III. ANALYSIS

A. Personal Jurisdiction Over the Named Individual Defendants

The defendants begin their motion to dismiss by arguing that the Court may not exercise personal jurisdiction over the five named individual defendants, President Arafat and Messrs. Dahlan, Abu Shabak, Jabali, and Issa. As far as the record reveals, these defendants have no personal connection with the United States. Indeed, the plaintiffs acknowledge that "none of the individual defendants is a resident of the United States or has any commercial or other activities within the United States." Pls.' Opp. to Mot. to Dismiss at 49. The plaintiffs nonetheless assert that the named individual defendants have sufficient contacts with the United States for purposes of establishing personal jurisdiction, in conjunction with proper service of process, under Rule 4(k)(2) of the Federal Rules of Civil Procedure.

Rule 4(k)(2) states:

If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state.

FED. R. CIV. P. 4(k)(2). The Rule therefore "allows a district court to acquire jurisdiction over a foreign defendant which has insufficient contacts with any single state but has `contacts with the United States as a whole ....'" In re Vitamins Antitrust Litig., 94 F.Supp.2d 26, 31 (D.D.C.2000) (citing Advisory Comm. Note to 1993 Amendment). In United States v. Swiss American Bank, Ltd., 191 F.3d 30 (1st Cir.1999), the First Circuit discussed the parameters of this procedural device.

The rule's fabric contains three strands: (1) the plaintiff's claim must be one arising under federal law; (2) the putative defendant must be beyond the jurisdictional reach of any state court of general jurisdiction; and (3) the federal courts' exercise of personal jurisdiction over the defendant must not offend the Constitution or other federal law.

Id. at 38. In applying this tripartite test here, the question is whether the named individual defendants have sufficient contacts with the United States to satisfy the Due Process Clause of the Fifth Amendment to the U.S. Constitution.⁴

The plaintiffs urge the Court to adopt "a due process analysis specifically fitted to the unique circumstances of civil actions against foreign terrorists and their sponsors" that has been applied by a fellow district judge of this...