Estate of Klieman v. Palestinian Authority

• Decision Date: 29 December 2006
• Docket Number: Civil Action No. 04-1173(PLF),
• Citation: 467 F.Supp.2d 107
• Parties: ESTATE of Esther KLIEMAN, et al., Plaintiffs, v. PALESTINIAN AUTHORITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

467 F.Supp.2d 107

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.

December 29, 2006.

COPYRIGHT MATERIAL OMITTED

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

Lawrence W. Schilling, Ramsey Clark, New York, NY, 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 ("Opinion"). See Klieman v. Palestinian Auth'y, 424 F.Supp.2d 153 (D.D.C.2006) ("Klieman I").

To summarize, in its previous Opinion 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 was a disputed question of material fact which should not be decided by the Court in the context of a motion to dismiss. See id. That Opinion also granted defendants leave to "raise additional jurisdictional defenses by motion." Id. at 168.

This matter is now before the Court on defendants' second 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, as well as on grounds of insufficient "minimum contacts" to satisfy due process. See Mot. at 2-3. Defendants also move to dismiss for lack of subject matter jurisdiction, essentially asking the Court to reconsider its holding denying sovereign immunity to the Palestinian Authority and the Palestinian Liberation Organization. See Mot. at 4-5 ("[D]efendants respectfully suggest further consideration of the Court's subject matter jurisdiction is appropriate . . .").

The Court declines to reconsider its previous decision on sovereign immunity and subject matter jurisdiction. Therefore, the instant motion will be considered solely as one to dismiss for insufficient service of process and for lack of personal jurisdiction under Rules 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure. For the reasons discussed below, the Court concludes that none of the defendants have been served properly, but that plaintiffs should be given a further opportunity to properly effect service.

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 individual defendants 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). Regarding venue and service of process, the ATA provides:

Any civil action under section 2333 of this title against any person may be instituted in the district court of the United States for any district where any plaintiff resides or where any defendant resides or is served, or has an agent. Process in such a civil action may be served in any district where the defendant resides, is found, or has an agent.

18 U.S.C. § 2334(a).

Plaintiffs assert that they "effected service of process upon all of the Defendants by delivering copies of the summons and Complaint to a PLO agent who is designated by the PLO as a contact person, at the PLO's offices in Washington, DC." Opp. at 3. Seven Return of Service/Affidavits have been filed on the docket of this case, with respect to the PA, the PLO, the four other named entities, and Mr. Arafat, but not with respect to any of the five other individual defendants. Each states that service was effected "[b]y serving Hakam Takash, Researcher, authorized to accept. Service was completed at 1320 18th Street, NW, Suite 200, Washington DC 20036." Docket Nos. 2, 3, 4, 5, 6, 7, 10. Plaintiffs assert that under 18 U.S.C. § 2334(a) all twelve of the defendants "collectively reside and have agents" at the PLO offices in Washington, D.C. and therefore were served properly with process. Opp. at 5.

The plaintiffs assert that "Mr. Takash verbally represented to the Plaintiffs' process server that he was authorized to accept service." Opp. at 14. Plaintiffs have not offered any affidavits, declarations or other evidence to support this assertion in their brief. The defendants flatly deny this. See Reply at 5. Plaintiffs have the burden of establishing personal jurisdiction. 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). The Court therefore will not accept this disputed fact as true for the purposes of this motion.

II. DISCUSSION

A. Applicable Legal Standards

Plaintiffs bears the burden of establishing personal jurisdiction over each defendant. See GTE New Media Services, Inc. v. Ameritech Corp., 21 F.Supp.2d at 36. In order to meet its burden, plaintiffs must allege specific facts on which personal jurisdiction can be based; it cannot rely on conclusory allegations. 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 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. of Amer. 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). 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.

Plaintiffs in this case assert that all the defendants were properly served pursuant to Rule 4(h)(1) of the Federal Rules of Civil Procedure, "by...