Estates of Ungar ex rel. Strachman v. Palestinian
| Decision Date | 24 July 2001 |
| Docket Number | No. CIV.A. 00-105L.,CIV.A. 00-105L. |
| Court | U.S. District Court — District of Rhode Island |
| Parties | 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. |
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.
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David J. Strachman, Lipsey & Skolnik, Providence, RI, for Plaintiffs.
Deming E. Sherman, Edwards & Angell, Providence, RI, Ramsey Clark, Lawrence W. Schilling, New York City, for Defendants.
LAGUEUX, District Judge.
Plaintiffs filed the instant action pursuant to 18 U.S.C. § 2333 et seq. after Yaron Ungar, a United States citizen, and his wife, Efrat Ungar, were killed in Israel by the terrorist group Hamas. Enacted as part of the Antiterrorism Act of 1991 ("ATA"), 18 U.S.C. § 2333 provides a cause of action for American nationals injured in their person, property, or business by reason of an act of international terrorism. The complaint names the Palestinian Authority ("PA"), the Palestine Liberation Organization ("PLO"), Yasser Arafat ("Arafat"), and the officers of various law enforcement and intelligence agencies operating within the territories controlled by the PA and the PLO as defendants (hereinafter "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 complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient service of process, failure to state a claim upon which relief can be granted, and inconvenience of the forum. However, the most significant issue this Court must address is whether the Court's exercise of personal jurisdiction over the PA defendants is consistent with the constitutional requirements of minimum contacts and due process. For the reasons that follow, this Court concludes that it may exercise personal jurisdiction over defendant PA and defendant PLO, but cannot exercise jurisdiction over the remaining PA defendants. Because the Court concludes that it has jurisdiction over defendants PA and PLO, it also addresses the additional 12(b) motions filed by the PA defendants.
I. Background
On June 9, 1996, United States citizen Yaron Ungar, his wife Efrat Ungar, and their nine month old son, plaintiff Yishai Ungar, were traveling home from a wedding.
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Near Beit Shemesh, Israel, 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 with two Kalashnikov machine guns. Yaron and Efrat Ungar were killed in the shooting attack. Yishai Ungar survived the attack unscathed. Plaintiff Dvir Ungar, the Ungars' older son, was not in the car at the time of the shooting.
Abu Hamdiya, Rahman Ghanimat, and Hor were arrested following the shooting attack. A fourth man, defendant Iman Mahmud Hassan Fuad Kafishe ("Kafishe") was also arrested in connection with the shooting. In addition, a warrant was issued for the arrest of Ibrahim Ghanimat on charges relating to the murders of Yaron and Efrat Ungar. Ibrahim Ghanimat remains at large and is believed to be residing within territory controlled by defendant PA.
All five men involved in the shooting are members of Hamas Islamic Resistance Movement, also known as "Harakat Al-Muqawama Al-Islamiyya" ("Hamas"). A terrorist group dedicated to murdering Israeli and Jewish individuals through bombings, shootings, and other violent acts, Hamas is based in and operates from territories controlled by defendants PA, PLO, and Yasser Arafat. Terrorist attacks are staged by small groups of Hamas members organized as a cell for the purpose of carrying out terrorist activities. Abu Hamdiya, Rahman Ghanimat, Hor, Kafishe, and Ibrahim Ghanimat comprised the terrorist cell that murdered the Ungars.
On May 3, 1998, Abu Hamdiya was convicted by an Israeli court of membership in Hamas and of abetting the shooting murders of Yaron Ungar and Efrat Ungar. On October 21, 1998, an Israeli court convicted Rahman Ghanimat and Hor of membership in defendant Hamas and of the murders of Yaron Ungar and Efrat Ungar. On November 3, 1998, Kafishe was convicted by an Israeli court of membership in Hamas and of being an accessory to the murders of Yaron and Efrat Ungar.
Thereafter, on October 25, 1999, an Israeli court appointed attorney David Strachman ("Strachman") as administrator of the Estates of Yaron and Efrat Ungar. Strachman was appointed as the administrator of the Ungars' estates for the express purpose of administering and realizing assets, rights, and causes of action that could be pursued on behalf of the Ungars' estates within the United States.
On March 13, 2000, plaintiffs filed an action pursuant to 18 U.S.C. § 2333 et seq. and related torts in the United States District Court for the District of Rhode Island. The following parties are listed as plaintiffs: the Estate of Yaron Ungar and the Estate of Efrat Ungar, represented by Strachman; Dvir Ungar and Yishai Ungar, the minor children and heirs-at-law of Yaron Ungar and Efrat Ungar; Professor Meyer Ungar and Judith Ungar, the parents of Yaron Ungar and the legal guardians of plaintiffs Dvir and Yishai Ungar; Rabbi Uri Dasberg and Judith Dasberg, the parents of Efrat Ungar and the legal guardians of plaintiffs Dvir and Yishai Ungar; and Amichai Ungar, Dafna Ungar, and Michal Cohen, the siblings of Yaron Ungar. Plaintiffs Professor Meyer Ungar and Judith Ungar bring this action both as the legal guardians of plaintiffs Dvir and Yishai Ungar and in their individual capacities. Similarly, plaintiffs Rabbi Uri Dasberg and Judith Dasberg bring this action both as the legal guardians of plaintiffs Dvir and Yishai Ungar and in their individual capacities.
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The defendants named in this lawsuit can be divided into two groups. The first group is comprised of the PA defendants. Included in this group are: the PA; the PLO; Arafat, President of defendant PA and Chairman of defendant PLO; Jibril Rajoub ("Rajoub") and Muhammed Dahlan ("Dahlan"), who commanded and controlled the Palestinian Preventive Security Services; Amin Al-Hindi ("Al-Hindi") and Tawfik Tirawi ("Tirawi"), who commanded and controlled the Palestinian General Intelligence Services; and Razi Jabali ("Jabali"), who commanded and controlled the Palestinian Police. The Palestinian Preventive Security Services, Palestinian General Intelligence Services, and Palestinian Police are all official law enforcement agencies of defendant PA responsible for law enforcement, maintaining public order and the prevention of violence and terrorism in the territories controlled by the PA and PLO.
The second group of defendants is comprised of the Hamas defendants ("Hamas defendants"). This group includes Hamas, as well as the individual operatives of Hamas responsible for the shooting attack that killed Yaron and Efrat Ungar: Rahman Ghanimat, Hor, Abu Hamdiya, Kafishe, and Ibrahim Ghanimat.
Plaintiffs' complaint states five causes of action. With the exception of Count III, all claims are brought on behalf of all plaintiffs as against all defendants. Count I alleges that defendants engaged in acts of international terrorism as defined by 18 U.S.C. §§ 2331 and 2333. Count II of the complaint alleges death by wrongful act. Count III of the complaint, which is brought against the PA defendants only, is for negligence. Count IV alleges intentional infliction of emotional distress, and Count V alleges negligent infliction of emotional distress.
The factual basis for each claim is the same. Essentially, plaintiffs' allege that the PA defendants failed to maintain public order and security in the territories under their control, and instead "provided defendant Hamas and its members with safe haven, a base of operations, shelter, financial support and other material support and resources." Pls.' Compl. ¶ 41. Plaintiffs further allege that the Hamas defendants planned and executed acts of violence against civilians in Israel, Gaza and the West Bank, including the murders of Yaron and Efrat Ungar. Plaintiffs contend that defendants' actions constitute acts of international terrorism because their actions: (1) were dangerous to human life and are a violation of the criminal laws of the United States,1 (2) appear to be intended to intimidate or coerce a civilian population, or to influence the policy of a government by means of intimidation or coercion, and (3) occurred outside the territorial jurisdiction of the United States.
On June 15, 2000, the PA defendants filed a motion pursuant to Fed.R.Civ.P. 12(b) to dismiss the complaint against them on the grounds of lack of jurisdiction over the subject matter, lack of jurisdiction over the person, insufficiency of service of process, improper venue, failure to state a claim upon which relief can be granted, and inconvenience of the forum....
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