Estate of Klieman v. Palestinian Authority

• Decision Date: 18 April 2008
• Docket Number: Civil Action No. 04-1173 (PLF).
• Citation: 547 F.Supp.2d 8
• Parties: ESTATE OF Esther KLIEMAN, et al., Plaintiffs, v. PALESTINIAN AUTHORITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

547 F.Supp.2d 8

ESTATE OF Esther KLIEMAN, et al., Plaintiffs, v. PALESTINIAN AUTHORITY, et al., Defendants.

Civil Action No. 04-1173 (PLF).

United States District Court, District of Columbia.

April 18, 2008.

COPYRIGHT MATERIAL OMITTED

Noel Jason Nudelman, Richard D. Heideman, Tracy Reichman Kalik, Heideman Nudelman & Kalik, P.C., Steven R. Pedes, Perles Law Firm, P.C., Washington, DC, for Plaintiffs.

Charles Francisbenedict McAleer, Jr., Mark J. Rochon, Richard A. Hibey, Miller & Chevalier, Chartered, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

The estate, survivors and heirs of Esther Klieman, a United States citizen, have brought this action under Section 2333 of the Antiterrorism Act of 1991 ("ATA"), 18 U.S.C. §§ 2331 et seq., and various tort theories, against the Palestinian Authority (the "PA"), also known as the Palestinian Interim Self-Government Authority and the Palestinian National Authority; the Palestine Liberation Organization (the "PLO"); Al Aqsa Martyrs Brigade ("Al Aqsa"); Fatah; Tanzim; Force 17; Yasser Arafat, now deceased; Marwan Barghouti; Tamer Rassam Salim Rimawi; Hussam Abdul-Kader Ahmad Halabi, also known as Abu Arav; Ahmed Hamad Rushdie Hadib, also known as Ahmed Barghouti; and Annan Aziz Salim Hashash.¹ On March 30, 2006, the Court issued an Opinion and an Order denying defendants' first motion to dismiss and granting plaintiffs partial motion for summary judgment. See Klieman v. Palestinian Awth'y, 424 F.Supp.2d 153 (D.D.C.2006) ("Klieman I. On December 29, 2006, the court issued an Opinion and Order holding that service of process was ineffective to establish personal jurisdiction over defendants and granting plaintiffs 30 days to perfect service, after which the action would be dismissed if service was not effected. See Klieman v. Palestinian Auth'y, 467 F.Supp.2d 107 (D.D.C.2006) ("Klieman II").

To summarize, in Klieman I the Court held that: (1) collateral estoppel precluded the relitigation of the issues surrounding defendants' assertion of sovereign immunity and that sovereign immunity does not divest this Court of jurisdiction to hear this case, see Klieman I at 159; (2) judicial resolution of this case was not precluded by the political question doctrine, see id. at 162; (3) the attack alleged in the Complaint did not occur "in the course of an armed conflict and therefore was not an "act of war" outside of the jurisdiction of the ATA, see id. at 167; and (4) whether the attack at issue met the definition of "international terrorism" in the ATA involved a disputed question of material fact which should not be decided by the Court in the context of a motion to dismiss. See id. In that Opinion, the Court also granted defendants leave to "raise additional jurisdictional defenses by motion." Id. at 168.

In Klieman II the Court held that service of process on a researcher at the PLO offices in Washington, D.C., was ineffective to establish personal jurisdiction over the defendants. See Klieman II at 115. The Court granted the plaintiffs an additional 30 days from the date of the Opinion and Order to serve process upon the defendants. See id.

This matter is now before the Court on defendants' third motion to dismiss.² Defendants move to dismiss for lack of personal jurisdiction due to insufficient service of process on both the individual and the organizational defendants under the Court's Opinion in Klieman II³ For the reasons discussed below, the Court concludes that the PLO and PA were properly served but that the individual defendants and Fatah, Al Aqsa, Tanzim and Force 17 were not properly served. The Court thus dismisses the individual defendants and Fatah, Al Aqsa, Tanzim and Force 17 from this case.

I. BACKGROUND

The Court summarized the facts alleged in the complaint in each of its two earlier opinions and will not do so again here. See Klieman I at 155-56 and Klieman II at 110-11.

After the Court issued its second opinion, plaintiffs did not attempt to serve process on any of the individual defendants. Plaintiffs assert that they "served the Organizational Defendants by mailing the service documents to the PLO/PA offices in Washington, DC by pre-paid United States first class certified mail, return receipt requested" and "by personal service on Afif Emile Safieh, head of the PLO Mission to the United States." Opp. at 4. Plaintiffs submitted an Affidavit of Proof of Service from process server Faye N. Eisen, which appended six certified mail return receipts, with respect to the PA, the PLO and the four other organizational defendants. See Opp., Ex. A at 6-12. Peter Ormin of the PLO Mission in Washington, D.C. signed all six certified mail return receipts, indicating that he received the service documents for each organizational defendant at the PLO Mission on January 12, 2007. See id. Plaintiffs also filed six Affidavits of Process Server, with respect to the PA, the PLO and the four other organizational defendants. See Opp., Ex. B at 15-20. The process server avers in each Affidavit that he approached Mr. Safieh at his residence and "asked [Mr. Safieh] if he was head of the PLO Mission" to which Mr. Safieh replied "yes." See id. The process server informed Mr. Safieh that he (the process server) "had U.S. District Court summons and related documents for the Palestinian Liberation Organization, The Palestinian Authority, Al Aqsa Martyrs Brigade, Fatah, Force 17, and Tanzim," after which Mr. Safieh replied, according to the process server, "that he was authorized to accept them and took them in hand." Id. Mr. Safieh flatly denies that he said this. See Defs' Supp., Ex. A (Declaration of Afif Safieh) ¶;¶ 2, 13 ("I never told the man who served me with the papers that I was authorized to accept the papers"; "I do not represent or serve as an agent for AAMB, Fatah, Force 17, or Tanzim.").

Plaintiffs aver that "the PA/PLO considers Mr. Safieh to be the United States `represent[ative of] the [Palestinian] state in the making' and held him out to the public as such." Opp. at 10. Plaintiffs also submitted printed pages of the PLO Mission website, identifying the PLO Mission as "the official voice of Palestine in Washington" and Mr. Safieh as "Head of the PLO Mission in Washington." See Opp., Ex. C at 22-26. Plaintiffs assert that "[by] serving the PA/PLO, the Plaintiffs served all of the Organizational Defendants because Fatah, Al Aqsa, Tanzim and Force 17 form an unincorporated association with the PLO and PA." Opp. at 6. Defendants concede that Safieh "is authorized to receive service of process in matters concerning the PLO" but deny that process was properly effected with respect to the PA and the four other organizational defendants. See Mot. at 4-5.⁴ Because plaintiffs did not serve the six individual defendants named in the Complaint, defendants assert that these defendants are "entitled to dismissal from the case." Mot. at 2.

II. DISCUSSION

A. Applicable Legal Standards

As the Court previously noted, plaintiffs bear the burden of establishing personal jurisdiction over each defendant. See GTE New Media Services, Inc. v. Ameritech Corp., 21 F.Supp.2d 27, 36 (D.D.C. 1998), remanded on other grounds sub nom. GTE New Media Services, Inc. v. BellSouth Corp., 199 F.3d 1343 (D.C.Cir. 2000). In order to meet its burden, plaintiffs must allege specific facts on which personal jurisdiction can be based; it cannot rely on conclusory allegations. See id. Nor can plaintiffs aggregate factual allegations concerning multiple defendants in order to demonstrate personal jurisdiction over any single defendant. See Rush v. Savchuk, 444 U.S. 320, 331-32, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980) (rejecting aggregation of co-defendants' forum contacts in determining personal jurisdiction because "the requirements of International Shoe [Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ] must be met as to each defendant over whom a ... court exercises jurisdiction"). Furthermore, when considering personal jurisdiction, the Court need not treat all of the plaintiffs' allegations as true. Instead, the court "may [also] receive and weigh affidavits and other relevant matter to assist in determining the jurisdictional facts." Jung v. Assoc. ofAmer. Medical Colleges, 300 F.Supp.2d 119, 127 (D.D.C.2004) (quoting United States v. Philip Morris Inc., 116 F.Supp.2d 116, 120 n. 4 (D.D.C.2000)); see also Brunson v. Kalil & Co., 404 F.Supp.2d 221, 223 (D.D.C.2005).

Before a court may exercise personal jurisdiction over a defendant, the procedural requirement of proper service of summons must be satisfied to assure notice to the defendant. See Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987); Cambridge Holdings Group v. Federal Insurance Co., 489 F.3d 1356, 1361 (D.C.Cir. 2007). There must also be a constitutionally sufficient relationship between the defendant and the forum, and a basis for the defendant's amenability to service of summons. See Mwani v. bin Laden, 417 F.3d 1, 8 (D.C.Cir.2005); Ungar v. Palestinian Authority, 304 F.Supp.2d 232, 249 (D.R.I. 2004). These requirements stem from the Due Process Clause of the Constitution and are a restriction on judicial power as a matter of individual liberty. See Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. at 104, 108 S.Ct. 404.

Plaintiffs now assert that the six organizational defendants were properly served pursuant to Rules 4(h)(1) and 4(e)(1) of the Federal Rules of Civil Procedure and Rules 4(c)(3) and 4(h) of the D.C. Rules of Civil Procedure. See Opp. at 10. According to Rule 4(h) of the Federal Rules of Civil Procedure, "a partnership or other unincorporated association that is subject to suit under a common name, must be served: (1) in a judicial district of the United States ... in the manner prescribed by Rule 4(e)(1) for serving an individual" or "by delivering a copy of the summons and of the complaint to an officer, a managing...