Estates of Ungar ex rel. Strachman v. Pales. Auth., C.A. No. 00-105L.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
Writing for the CourtLagueux
Citation228 F.Supp.2d 40
PartiesThe ESTATES OF Yaron UNGAR and Efrat Ungar, by and through the Administrator of their estates David STRACHMAN; Dvir Ungar, minor, by his guardians and next friend; Yishai Ungar, minor, by his guardians and next friend; Professor Meyer Ungar, Judith Ungar, Rabbi Uri Dasberg, Judith Dasberg, (individually and in their capacities as legal guardians of plaintiffs Dvir Ungar and Yishai Ungar); Amichai Ungar; Dafna Ungar and Michal Cohen, Plaintiffs, v. The PALESTINIAN AUTHORITY (a.k.a. "The Palestinian Interim Self-Government Authority"), The Palestine Liberation Organization, Yasser Arafat, Jibril Rajoub, Muhammed Dahlan, Amin Al-Hindi, Tawfik Tirawi, Razi Jabali, Hamas-Islamic Resistance Movement (a.k.a. "Harakat Al-Muqawama Al-Islamiyya"), Abdel Rahman Ismail Abdel Rahman Ghanimat, Jamal Abdel Fatah Tzabich Al Hor, Raed Fakhri Abu Hamdiya, Ibrahim Ghanimat and Iman Mahmud Hassan Fuad Kafishe, Defendants.
Docket NumberC.A. No. 00-105L.
Decision Date04 November 2002

Page 40

228 F.Supp.2d 40
The ESTATES OF Yaron UNGAR and Efrat Ungar, by and through the Administrator of their estates David STRACHMAN; Dvir Ungar, minor, by his guardians and next friend; Yishai Ungar, minor, by his guardians and next friend; Professor Meyer Ungar, Judith Ungar, Rabbi Uri Dasberg, Judith Dasberg, (individually and in their capacities as legal guardians of plaintiffs Dvir Ungar and Yishai Ungar); Amichai Ungar; Dafna Ungar and Michal Cohen, Plaintiffs,
v.
The PALESTINIAN AUTHORITY (a.k.a. "The Palestinian Interim Self-Government Authority"), The Palestine Liberation Organization, Yasser Arafat, Jibril Rajoub, Muhammed Dahlan, Amin Al-Hindi, Tawfik Tirawi, Razi Jabali, Hamas-Islamic Resistance Movement (a.k.a. "Harakat Al-Muqawama Al-Islamiyya"), Abdel Rahman Ismail Abdel Rahman Ghanimat, Jamal Abdel Fatah Tzabich Al Hor, Raed Fakhri Abu Hamdiya, Ibrahim Ghanimat and Iman Mahmud Hassan Fuad Kafishe, Defendants.
C.A. No. 00-105L.
United States District Court, D. Rhode Island.
November 4, 2002.

Page 41

David J. Strachman, McIntyre, Tate, Lynch & Holt, Counsellors at Law, Providence, RI, for Plaintiffs.

Ramsey Clark and Lawrence W. Schilling, Ramsey Clark & Lawrence W. Schilling Law Offices, New York City, Deming E. Sherman, Edwards & Angell, Providence, RI, for Defendants.

DECISION AND ORDER

LAGUEUX, Senior District Judge.


Plaintiffs filed this amended action for damages under the federal counterterroism statutes, 18 U.S.C. § 2333 (2000) et seq. after Yaron Ungar, a United States citizen, and his wife, Efrat Ungar, were killed in Israel by the terrorist group Hamas. As part of what was initially enacted as the Antiterrorism Act of 1991 ("ATA"),1 section 2333 provides a cause of action for any national of the United States who was injured in his or her person, property, or business by reason of an act of international terrorism. Section 2333 also permits the estate, survivors or heirs of any national injured by an act of international terrorism to bring suit in any appropriate United States district court. The amended complaint names the Palestinian Authority ("PA"), and the Palestine Liberation Organization ("PLO") as defendants ("the PA defendants"), as well as Hamas and the individual Hamas members responsible for the Ungars' deaths.

This matter is before the Court on the PA defendants' motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted and, in the alternative, for certification of an interlocutory appeal under 28 U.S.C. § 1292(b) (2000) and a corresponding stay pending disposition of the motion for certification and/or appeal. In light of this Court's July 24, 2001 opinion deciding a comparable motion to dismiss in this case, this Court today concludes that the PA defendants' motion to dismiss must be denied. Likewise, the PA defendants' motion for certification of an interlocutory appeal and a stay pending disposition of the motion and/or appeal is denied in accordance with the broad discretion granted to United States district courts under 28 U.S.C. § 1292(b).

I. Background

As this Court discussed in its opinion in The Estates of Ungar ex rel. Strachman v. The Palestinian Authority, 153 F.Supp.2d 76 (D.R.I.2001) ("Ungar I"), on June 9, 1996, Yaron and Efrat Ungar were traveling home from a wedding in Israel with their nine month old son, plaintiff Yishai Ungar, when a vehicle driven by defendant Raed Fakhri Abu Hamdiya ("Abu Hamdiya") approached the Ungars' vehicle. Defendants Abdel Rahman Ismail Abdel Rahman Ghanimat ("Rahman Ghanimat") and Jamal Abdel Fatah Tzabich Al Hor ("Hor"), opened fire on the Ungars' car killing both Yaron and Efrat. Yishai Ungar was not injured in the attack. Plaintiff Dvir Ungar, the Ungar's older son, was not in the car at the time.

Abu Hamdiya, Rahman Ghanimat, Hor and defendant Iman Mahmud Hassan Fuad Kafishe ("Kafishe") were convicted by Israeli courts for their membership in Hamas and on charges relating to the murders of Yaron Ungar and Efrat Ungar.

Page 42

A warrant was issued for the arrest of defendant Ibrahim Ghanimat on charges relating to the murders of the Ungars, but he remains at large and is believed to be residing within territory controlled by defendant PA.

David Strachman ("Strachman") was appointed administrator of the Estates of Yaron and Efrat Ungar by an Israeli court on October 25, 1999. Strachman filed suit in this court on March 13, 2000 pursuant to 18 U.S.C. § 2333 et seq. seeking damages on behalf of plaintiffs under the ATA.

In Ungar I, this Court determined that it had subject matter jurisdiction in this case and also personal jurisdiction over the PA defendants. This Court also held that venue and service of process were proper and denied the PA defendants' motion to dismiss for inconvenience of the forum. This Court dismissed claims involving the Estate of Efrat Ungar pursuant to 18 U.S.C. § 2333, because Efrat Ungar did not qualify as a national of the United States under the statute. This Court also denied the PA defendants' motion to dismiss with regard to the remaining counts under § 2333. As for the state law claims for death by wrongful act, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress, this Court granted defendants' motion to dismiss and granted plaintiffs leave to amend, because plaintiffs failed to plead those causes of action under Israeli law as required by Rhode Island's choice of law rules in tort matters.

Plaintiffs subsequently filed an amended complaint on August 23, 2001. Plaintiffs' amended complaint states four causes of action. With the exception of Count I, all claims are brought on behalf of all plaintiffs as against all defendants. Count I of the amended complaint which is brought only on behalf of plaintiffs The Estate of Yaron Ungar, Dvir Ungar, Yishai Ungar, Meyer Ungar, Judith Ungar, Amichai Ungar, Dafna Ungar and Michael Cohen, alleges that defendants engaged in acts of international terrorism as defined in 18 U.S.C. §§ 2331 and 2333 and that defendants' behavior likewise constitutes aiding and abetting acts of international terrorism. Pursuant to the Israeli Civil Wrongs Ordinances, Counts II, III and IV of the complaint allege negligence, breach of statutory obligation, and assault, respectively.

The factual basis for each claim is essentially the same. Plaintiffs allege that the PA defendants repeatedly praised defendant Hamas and its operatives who engaged in terrorist activities and violence against Jewish civilians and Israeli targets. See Pls.' Am. Compl. ¶ 43. Plaintiffs also allege that the PA defendants "praised, advocated, encouraged, solicited and incited" terrorist activities. Id. Furthermore, Plaintiffs allege that as a result of the acts of international terrorism and the aiding and abetting of acts of international terrorism committed by the individually named defendants, Yaron and Efrat Ungar were killed, thereby causing the decedents and named plaintiffs severe physical, emotional and financial injury. See id. ¶ 47.

Plaintiffs assert in the amended complaint (Count I) that the actions of the defendants constitute acts of international terrorism pursuant to 18 U.S.C. § 2331 because those actions: (1) constitute a violation of the criminal laws of the United States and would constitute criminal violations if committed within the jurisdiction of the United States, (2) appear to be intended to intimidate or coerce a civilian population and to influence the policy of a government by intimidation or coercion, and (3) occurred outside the United States. See id. ¶¶ 41-43.

In Count II, plaintiffs allege that pursuant to Israeli law codified in § 35 of the Civil Wrongs Ordinance (New Version)

Page 43

1968, ("CWO") the defendants acted negligently. Plaintiffs allege that the PA defendants were obligated not to act as they did since a reasonable person under the same circumstances would have foreseen that in the ordinary course of events the plaintiffs would likely be injured by defendants' acts and omissions. See id. ¶ 60. Plaintiffs allege that the PA defendants and their agents, acting within the scope of their employment and agency, did not use the skill or exercise the degree of caution which a reasonable person would have used under similar circumstances. See id. ¶ 59.

Similarly, plaintiffs allege in Counts III and IV that defendants violated CWO § 63 (breach of statutory obligation) and CWO § 23 (assault). Section 63 provides a cause of action for failure to comply with an obligation imposed under any enactment of the CWO. Plaintiffs, allege, for example, that some of the statutory obligations breached by defendants include § 300 (murder), § 3 (membership in a terrorist organization), and Article XV of the Interim Agreement on the West Bank and the Gaza Strip of September 28, 1995 which has been enacted into law and imposes a duty upon officials to prevent acts of terrorism in the region.2 See id. ¶ 69(a)-(b), (d). Section 23, on the other hand, provides a cause of action for the intentional use of any kind of force against a person's body without that person's consent. Plaintiffs allege that Hamas and the individually named Hamas defendants attempted to use and intentionally used force against the Ungars without their consent. Id. ¶¶ 76-77. Plaintiffs further contend that the PA defendants solicited and advised the Hamas defendants to commit the alleged assault and that the PA defendants aided and abetted the commission of that assault. Id. ¶ 79.

On November 28, 2001, the PA defendants filed a motion pursuant to Fed. R.Civ.P. 12(b)(6) to dismiss the amended complaint against them as non justiciable and for failure to state a claim upon which relief can be granted. In the alternative, the PA defendants moved for certification of an interlocutory appeal to the Court of Appeals pursuant to 28 U.S.C. § 1292(b) and a stay pending disposition of the...

To continue reading

Request your trial
13 practice notes
  • Knox v. Palestine Liberation Organization, No. 03 Civ. 4466.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 1, 2004
    ...3. The complaint does not specify the circumstances of Hassuna's death. 4. See, e.g., Ungar v. Palestinian Authority ("Ungar I"), 228 F.Supp.2d 40 (D.R.I.2002), aff'd, Ungar v. Palestinian Liberation Org. ("Ungar II"), 2003 WL 21254790 (1st Cir. May 27, 2003); Shartsky v. Syrian Arab Republ......
  • Estates of Ungar & Ungar v. Palestinian Authority, C.A. No. 00-105L.
    • United States
    • U.S. District Court — District of Rhode Island
    • July 12, 2004
    ...Ungar IV, 315 F.Supp.2d at 168-171; Ungar III, 304 F.Supp.2d at 244-47; The Estates of Ungar ex rel. Strachman v. The Palestinian Auth., 228 F.Supp.2d 40, 41-43 (D.R.I.2002)(hereinafter, Ungar II); Ungar I, 153 F.Supp.2d at 82-85; and the attached Report and Recommendation. Therefore, there......
  • Ungar ex rel. Strachman v. Palestinian Authority, No. 00-105L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • January 27, 2004
    ...previous opinions. See Ungar I, 153 F.Supp.2d 76, 82-85 (D.R.I.2001); The Estates of Ungar ex rel. Strachman v. The Palestinian Auth., 228 F.Supp.2d 40, 41-43 (D.R.I.2002) (hereinafter, Ungar II); and the attached Report and Recommendation. Therefore, there is no need to repeat the tragic e......
  • Estates of Ungar v. The Palestinian Authority, No. C.A.No. 00-105L (D. R.I. 1/27/2004), No. C.A.No. 00-105L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • January 27, 2004
    ...opinions. See Ungar I, 153 F. Supp. 2d 76, 82-85 (D.R.I. 2001); The Estates of Ungar ex rel. Strachman v. The Palestinian Auth., 228 F. Supp. 2d 40, 41-43 (D.R.I. 2002) (hereinafter, Ungar II); and the attached Report and Recommendation. Therefore, there is no need to repeat the tragic Page......
  • Request a trial to view additional results
13 cases
  • Knox v. Palestine Liberation Organization, No. 03 Civ. 4466.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 1, 2004
    ...3. The complaint does not specify the circumstances of Hassuna's death. 4. See, e.g., Ungar v. Palestinian Authority ("Ungar I"), 228 F.Supp.2d 40 (D.R.I.2002), aff'd, Ungar v. Palestinian Liberation Org. ("Ungar II"), 2003 WL 21254790 (1st Cir. May 27, 2003); Shartsky v. Syrian Arab Republ......
  • Estates of Ungar & Ungar v. Palestinian Authority, C.A. No. 00-105L.
    • United States
    • U.S. District Court — District of Rhode Island
    • July 12, 2004
    ...Ungar IV, 315 F.Supp.2d at 168-171; Ungar III, 304 F.Supp.2d at 244-47; The Estates of Ungar ex rel. Strachman v. The Palestinian Auth., 228 F.Supp.2d 40, 41-43 (D.R.I.2002)(hereinafter, Ungar II); Ungar I, 153 F.Supp.2d at 82-85; and the attached Report and Recommendation. Therefore, there......
  • Ungar ex rel. Strachman v. Palestinian Authority, No. 00-105L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • January 27, 2004
    ...previous opinions. See Ungar I, 153 F.Supp.2d 76, 82-85 (D.R.I.2001); The Estates of Ungar ex rel. Strachman v. The Palestinian Auth., 228 F.Supp.2d 40, 41-43 (D.R.I.2002) (hereinafter, Ungar II); and the attached Report and Recommendation. Therefore, there is no need to repeat the tragic e......
  • Estates of Ungar v. The Palestinian Authority, No. C.A.No. 00-105L (D. R.I. 1/27/2004), No. C.A.No. 00-105L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • January 27, 2004
    ...opinions. See Ungar I, 153 F. Supp. 2d 76, 82-85 (D.R.I. 2001); The Estates of Ungar ex rel. Strachman v. The Palestinian Auth., 228 F. Supp. 2d 40, 41-43 (D.R.I. 2002) (hereinafter, Ungar II); and the attached Report and Recommendation. Therefore, there is no need to repeat the tragic Page......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT