Estate of Klieman v. Palestinian Authority

• Decision Date: 30 March 2006
• Docket Number: No. CIV.A. 04-1173 PLF.,CIV.A. 04-1173 PLF.
• Citation: 424 F.Supp.2d 153
• Parties: ESTATE OF Esther KLIEMAN, et al., Plaintiffs, v. PALESTINIAN AUTHORITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

424 F.Supp.2d 153

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

No. CIV.A. 04-1173 PLF.

United States District Court, District of Columbia.

March 30, 2006.

COPYRIGHT MATERIAL OMITTED

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

Lawrence W. Schilling, Ramsey Clark, New York City, Maher H. Hanania, Hanania & Khader, Falls Church, VA, 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; Fatah; Tanzim; Force 17; Yasser Arafat, now deceased; and five other individuals.¹ Now pending before the Court are (1) the motion of the Palestinian Authority and the Palestine Liberation Organization (together referred to herein as "defendants") to dismiss the complaint; (2) plaintiffs' motion for partial summary judgment; and (3) defendants' motion for the abatement of all proceedings in this case for three months, until May 1, 2006. The Court heard oral argument on the first two of the three motions on December 15, 2005.

I. BACKGROUND

As alleged in the complaint, on March 24, 2002, a terrorist attack was carried out on a public transport bus traveling "on the Abud bypass road, near the village of Umm Safah, north of Ramallah, in the State of Israel or in territories administered or controlled by the State of Israel." Complaint ¶ 23; see also id. ¶¶ 1, 22, 24. The attack, in which one of the named individuals is alleged to have opened fire on the bus with a Kalachnikov Automatic rifle, resulted in the death of Esther Klieman. Id. ¶¶ 24, 25. Plaintiffs contend that defendants are responsible for the attack and, accordingly, have brought this action under the ATA, which establishes a federal cause of action for damages resulting from terrorist attacks in foreign countries.

The ATA provides in relevant part:

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.

18 U.S.C. § 2333(a). The ATA, in turn, 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 any State;

(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 destruction, assassination, or kidnapping; and

(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.

18 U.S.C. § 2331(1).

Defendants, relying on Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, seek dismissal on four grounds. First, they assert sovereign immunity from suit under both Section 1604 of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §.§ 1602 et seq., and Section 2337(2) of the ATA. Defendants PA and PLO Supporting Memorandum of Points and Authorities in Support of Their Rule 12(b) Motion ("Def.Mem.") at 2, 13-31.² Second, defendants argue that dismissal is warranted because the case presents non-justiciable political questions. Id. at 2, 31-33. Third, they argue that Section 2336(a) of the ATA mandates dismissal because the action is for injury caused by an "act of war." Id. at 2, 33-55. Fourth, and finally, defendants contend that the activities alleged in the complaint fail to satisfy the statutory definition of "international terrorism" in Section 2331 of the ATA. Id. at 2, 38.³

Defendants also have moved for the abatement of all proceedings in this case, until May 1, 2006, pending receipt by defense counsel of instructions from the new political leadership that has emerged from the Palestinian parliamentary elections that were held on January 25, 2006. See Defendants' Motion for the Abatement of All Proceedings in This Case for Three Months Pending Receipt by Defense Counsel of Instructions From the New Political Leadership in Palestine. ("Def. Mot. for Abatement").

II. DISCUSSION

A. Applicable Legal Standards

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, plaintiffs bear the burden of establishing by a preponderance of the evidence that the Court has subject matter jurisdiction. See Rosenboro v. Kim, 994 F.2d 13, 17 (D.C.Cir. 1993); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002). Although the Court may dispose of a motion to dismiss on the basis of the complaint alone, it may consider materials beyond the pleadings when evaluating a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Armstrong v. Vance, 328 F.Supp.2d 50, 53 (D.D.C.2004); Ass'n of Merger Dealers, LLC v. Tosco Corp., 167 F.Supp.2d 65, 69 (D.D.C.2001); Rann v. Chao, 154 F.Supp.2d 61, 64 (D.D.C. 2001); Scolaro v. D.C. Bd. of Elections and Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000); see Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992) ("[W]here necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.").

A motion to dismiss pursuant to Rule 12(b)(6) challenges the adequacy of the complaint on its face, testing whether the plaintiffs properly have stated a claim. Materials outside of the four corners of the complaint generally may not be considered in evaluating a Rule 12(b)(6) motion. See United States ex rel. New v. Rumsfeld, 350 F.Supp.2d 80, 88-89 (D.D.C.2004). "[A] 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); see Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). In evaluating a motion to dismiss, the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiffs. See Harris v. Ladner, 127 F.3d 1121, 1123 (D.C.Cir.1997). While the complaint is to be construed liberally, the Court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept the plaintiffs' legal conclusions. See Nat'l Treasury Employees Union v. United States, 101 F.3d 1423, 1430 (D.C.Cir.1996); Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D. C. Cir.1994).

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits or declarations, if any, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When considering a motion for summary judgment, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [their] favor." Id. at 255, 106 S.Ct. 2505; see Washington Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C.Cir.1989).

B. Defendants' Motion to Dismiss

1. Sovereign Immunity⁴

Citing Section 2337(2) of the ATA and Section 1604 of the FSIA, defendants move to dismiss this action on the ground that Palestine is a sovereign entity. See Def. Mem. at 13-31. Section 2337(2) prohibits the maintenance of a civil ATA lawsuit against "a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority." 18 U.S.C. § 2337(2). The FSIA similarly directs that, with exceptions not relevant here, "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States...." 28 U.S.C. § 1604; see also 28 U.S.C. § 1603(a) (indicating that the term "foreign state" under the FSIA includes "a political subdivision of a foreign state or an agency or instrumentality of a foreign state").⁵

Although neither the FSIA nor the ATA define the term "foreign state," two things are apparent from the case law. First, an assertion of sovereign immunity under Section 2337(2) of the ATA is the functional equivalent of an assertion of sovereign immunity under Section 1604 of the FSIA. Compare Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) ("[T]he text and structure of the FSIA demonstrate Congress' intention that the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts.") with Ungar v. Palestine Liberation Org., 402 F.3d 274, 282-83 (1st Cir.2005) ("Nothing in either...