Boim v. Holy Land Foundation for Relief and Dev.

• Decision Date: 28 December 2007
• Docket Number: No. 05-1815.,No. 05-1822.,No. 05-1816.,No. 05-1821.,05-1815.,05-1816.,05-1821.,05-1822.
• Citation: 511 F.3d 707
• Parties: Stanley BOIM, individually and as administrator of the Estate of David Boim, deceased, and Joyce Boim, Plaintiffs-Appellees, v. HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

511 F.3d 707

Stanley BOIM, individually and as administrator of the Estate of David Boim, deceased, and Joyce Boim, Plaintiffs-Appellees, v. HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, et al., Defendants-Appellants.

No. 05-1815.

No. 05-1816.

No. 05-1821.

No. 05-1822.

United States Court of Appeals, Seventh Circuit.

Argued November 30, 2005.

Decided December 28, 2007.

Stephen J. Landes, Wildman, Harrold, Allen & Dixon, Chicago, IL, Nathan Lewin (argued), Lewin & Lewin, Washington, DC, for Plaintiffs-Appellees.

John W. Boyd, Freedman, Boyd, Daniels, Peifer, Hollander, Guttman & Goldbe, Albuquerque, NM, Matthew J. Piers (argued), Frederick S. Rhine, Mary M. Rowland, Gessler Hughes Socol Piers Resnick & Dym, John M. Beal, James R. Fennerty, Brendan Shiller, Chicago, IL, for Defendants-Appellants.

David Seidman, Schwartz, Cooper, Greenberger & Krauss, Chicago, IL, for Jewish Community Relations Council of the Jewish United Fund of Metropolitan Chicago.

Daniel Elbaum, Anti-Defamation League, Jonathan K. Baum, Katten Muchin Rosenman, Chicago, IL, for Anti-Defamation League.

Before ROVNER, WOOD, and EVANS, Circuit Judges.

ROVNER, Circuit Judge.

This lawsuit has its origins in the murder of David Boim more than ten years ago. David, a citizen of both Israel and the United States, was living with his parents in Israel when he was gunned down while waiting for a bus in the West Bank outside of Jerusalem. He was apparently shot at random by gunmen believed to be acting on behalf of the terrorist organization Hamas.

Section 2333 of the United States Criminal Code grants U.S. nationals injured by acts of international terrorism the right to sue for treble damages in federal court. David's parents, Stanley and Joyce Boim, on behalf of themselves and David's estate, filed suit under this statute against not only the two men believed to have shot David, but an array of individuals and organizations in the United States with alleged connections to Hamas. Broadly speaking, the Boims' theory as to the latter group of defendants was that in promoting, raising money for, and otherwise working on behalf of Hamas, these defendants had helped to fund, train, and arm the terrorists who had killed their son. In Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th Cir.2002) ("Boim I"), we sustained the viability of the Boims' complaint, concluding that liability under section 2333 attached not only to the persons who committed terrorist acts, but to all those individuals and organizations along the causal chain of terrorism.

On remand, the district court found appellants Muhammad Abdul Hamid Khalil Salah ("Salah"), Holy Land Foundation for Relief and Development ("HLF"), and American Muslim Society ("AMS") liable to the Boims on summary judgment. Boim v. Quranic Literacy Inst., 340 F.Supp.2d 885 (N.D.Ill.2004). At the conclusion of a trial, a jury concluded that appellant Quranic Literacy Institute ("QLI") also was liable. The jury awarded damages of $52 million, which the district court trebled to $156 million. Salah, HLF, AMS, and QLI all appeal.¹

Salah, HLF, and AMS contend that the criteria employed by the district court for imposing liability were incomplete or incorrect and that the evidence adduced below did not suffice to impose liability. QLI complains of the district court's refusal to continue the trial date after the court's summary judgment rulings left it as the sole defendant facing a trial on liability; it also contends that the district court erred in sua sponte entering partial summary judgment against QLI as to one aspect of liability.

We reverse the entry of partial summary judgment as to liability against defendants HLF, AMS, and Salah. As to HLF, we conclude that the district court erred in giving collateral estoppel effect to the District of Columbia Circuit's finding that HLF funds the terrorist activities of Hamas. As to AMS and Salah, we conclude that the district court erroneously relieved the Boims of the burden of showing that these defendants' actions were a cause in fact of David Boim's death. As to QLI, we conclude that the district court erred in sua sponte and without prior notice applying its summary judgment determination against the other defendants that Hamas was responsible for the murder of David Boim, to QLI, against whom the Boims did not seek summary judgment. However, the district court did not abuse its discretion when it denied QLI's request to continue the trial date.

In light of the errors in the summary judgment rulings below, we vacate the judgments entered against these four appellants and remand for further proceedings. On remand, the Boims will have to demonstrate an adequate causal link between the death of David Boim and the actions of HLF, Salah, and AMS. This will require evidence that the conduct of each defendant, be it direct involvement with or support of Hamas's terrorist activities or indirect support of Hamas or its affiliates, helped bring about the terrorist attack that ended David Boim's life. A defendant's conduct need not have been the sole or predominant cause of the attack; on the contrary, consistent with the intent of Congress that liability for terrorism extend the full length of the causal chain, even conduct that indirectly facilitated Hamas's terrorist activities might render a defendant liable for the death of David Boim. But the plaintiffs must be able to produce some evidence permitting a jury to find that the activities of HLF, Salah, and AMS contributed to the fatal attack on David Boim and were therefore a cause in fact of his death. Absent such proof, those appellants will be entitled to judgment in their favor. As to QLI, which has not challenged the liability standard employed by the district court, the remand will be limited to the question of whether Hamas was responsible for the murder of David Boim. QLI will be given the opportunity (of which it was deprived by the district court's sua sponte summary judgment ruling) to attempt to demonstrate that there exists a dispute of material fact on this point.

I.

A.

The Boims moved to Israel from the United States in 1985 to pursue a more spiritual life. David was fifth of the Boim's seven children. In 1996, David was finishing his third year of high school and preparing to apply for college. He was an intelligent and determined student who dreamed of becoming a doctor. His classmates knew him as a warm, outgoing young man. "His trademark was his hug and his smile," recalled Yechiel Gellman, a friend and classmate. His mother described him as a peacemaker.

David studied in a yeshiva near Beit-El, a small West Bank village north of Jerusalem. By 3:30 p.m. on May 13, 1996, the school day had concluded. David and several of his classmates had gathered at a bus stop on a busy road between Jerusalem and Nablus. It was a hot, early-summer afternoon, and the boys were telling jokes and sharing stories as they awaited the bus that would carry them to Jerusalem, where they were taking a class to prepare them for their college entrance examinations. Shortly before 4:00 p.m., a car pulled off the road and stopped ten feet away from the assemblage of people at the bus stop; one or more of the car's occupants then opened fire. Gellman estimated that a total of thirty shots were fired; he could hear the bullets shrieking past his head. "[To] this day, I don't understand how I survived the shooting." He heard his friend Yair cry out, and he turned to see both Yair and David fall to the ground. David had been shot in the head. A passing dentist stopped and tried to revive him. He was subsequently evacuated by ambulance to a local hospital and then transferred to a second hospital for surgery. He died shortly after he was taken into the operating room. He was buried in Jerusalem that same evening after a service attended by his classmates and thousands of other mourners. "Part of me was taken away" the day he died, Joyce Boim would later testify. David was seventeen years old.

B.

The murder of David Boim was later attributed to two individuals: Amjad Hinawi and Khalil Tawfiq Al-Sharif. Both were apprehended by the Palestinian Authority in 1997 and then released pending trial. Al-Sharif killed himself in a suicide bombing at a shopping mall in Jerusalem later that same year. Hinawi was tried by a Palestinian Authority tribunal and convicted of participating in a terrorist attack and being an accomplice to Boim's murder. He was sentenced to ten years of hard labor.

Both Al-Sharif and Hinawi were believed to be members of the terrorist or "military" wing of Hamas.²,³ Hamas is an organization that was founded in 1987 as an outgrowth of the Muslim Brotherhood in Egypt. Its name is derived from an acronym for "Harakat al-Muqawama alIslamiyya," which in English means the "Islamic Resistance Movement." Its charter, written in 1988, calls for the obliteration of the State of Israel and the establishment of an Islamic republic in the area now comprising Israel, the West Bank, and the Gaza Strip. Soon after its founding, Hamas began to engage in terrorist attacks on both civilian and military targets. It was officially designated a terrorist organization by the United States Department of the Treasury's Office of Foreign Assets Control ("OFAC") on January 24, 1995. That designation made it illegal for a United States citizen or entity to engage in any transactions or dealings involving the property or interests of Hamas without license to do so. Hamas was subsequently deemed a foreign terrorist organization by the United States Secretary of State on October 8, 1997, a designation that made it illegal for anyone within the United States or subject to its jurisdiction to provide material support or resources to Hamas.

In addition to its military wing, Hamas has a political wing that advocates on behalf of the Palestinian people. Hamas also operates a network of social institutions known as Da'wa which provide...