Estates of Ungar & Ungar v. Palestinian Authority, C.A. No. 00-105L.
| Decision Date | 12 July 2004 |
| Docket Number | C.A. No. 00-105L. |
| Citation | 325 F.Supp.2d 15 |
| 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, Professor Meyer Ungar; Judith Ungar; Rabbi Uri Dasberg; Judith Dasberg (Individually and in Their Capacity as Legal Guardians of Plaintiffs Dvir Ungar and Yishai Ungar); Amichai Ungar; Dafna Ungar; and Michal Cohen, Plaintiffs,<SMALL><SUP>1</SUP></SMALL> v. The PALESTINIAN AUTHORITY (a.k.a. &#34;the Palestinian Interim Self-Government Authority&#34;); the Palestine Liberation Organization; Yasser Arafat; Jibril Rajoub; Muhammed Dahlan; Amin Al-Hindi; Tawfik Tirawi; Razi Jabali; Hamas &#x2014; Islamic Resistance Movement (a.k.a. &#34;Harakat Al-Muqawama Al-Islamiyya&#34;) 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.<SMALL><SUP>2</SUP></SMALL> |
| Court | U.S. District Court — District of Rhode Island |
David J. Strachman, Esq., McIntyre, Tate, Lynch & Holt, Providence, RI, for Plaintiff.
Deming E. Sherman, Esq., Annemarie M. Carney, Esq., Edwards & Angell, Providence, RI, Ramsey Clark, Esq., Lawrence W. Schilling, New York, NY, for Defendant.
There are three matters before this Court: 1)the objections filed by Defendants, the Palestinian Authority ("PA"), and the Palestine Liberation Organization ("PLO"), to a Report and Recommendation issued by Magistrate Judge David L. Martin on March 31, 2004 ("Report and Recommendation"); 2)the PA's appeal of a separate Order issued by Judge Martin granting Plaintiffs' request for attorneys' fees as a sanction for the PA's failure to provide any discovery in the instant case; and 3)Plaintiffs' motion, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, to alter and amend this Court's April 23, 2004 Decision and Order relating to sovereign immunity. The Estates of Yaron Ungar and Efrat Ungar ex rel Strachman v. The Palestinian Authority, 315 F.Supp.2d 164 (D.R.I.2004)(hereinafter, Ungar IV).
The facts of this case are described at length in this writer's previous opinions. See 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 is no need to repeat the tragic events and extensive procedural history underlying this litigation. It suffices to say here that on April 29, 2003, this writer referred Plaintiffs' three motions for default judgment against the PA and PLO to Magistrate Judge David L. Martin for preliminary review, findings, and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 32(a). Judge Martin held hearings on the motions last summer and took the matters under advisement.
Judge Martin reviewed the submitted memoranda and exhibits, performed independent research, and then issued an extensive Report and Recommendation on March 31, 2004, which is attached hereto. Judge Martin recommended that this Court enter default judgment against the PA in the amount of $116,421,048.00 and against the PLO in the amount of $116,415,468.00. Both recommended amounts include attorneys' fees.
The PA and PLO filed objections to Judge Martin's Report and Recommendation on April 19, 2004, before the time period for filing objections set forth in Rule 72(b) of the Federal Rules of Civil Procedure and Local Rule 32 elapsed later that day. The PA and PLO assert the following six grounds for their objections: 1)this Court lacks subject matter jurisdiction because the PA and PLO are entitled to sovereign and governmental immunity under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1604 (1976) ("FSIA"), and the Anti-Terrorism Act of 1991, 18 U.S.C. § 2337(2)(1992)("ATA"),3 and because the claims asserted against them present non-justiciable political questions; 2)Plaintiffs' claims are legally insufficient and do not support an entry of default judgment; 3)the Report and Recommendation fails to give effect to the PA's and PLO's position that they are entitled to a final determination of their claims to sovereign immunity, including appellate review, before being required to answer the Amended Complaint or participate in discovery; 4)the Report and Recommendation fails to recognize and give effect to the adverse conditions facing the Palestinian government and the PA and PLO, which have made discovery difficult and contrary to Palestinian national interests; 5)this Court lacks personal jurisdiction over the PA and PLO; and 6)the law should not require the "disproportionate compensation" recommended by Judge Martin. Objections of Defs. Palestinian Auth. & Palestine Liberation Organization to the Mag. Judge's Report & Recommendation, (hereinafter, Objections), at 1-3. That same day, the PA appealed Judge Martin's March 31, 2004 Order that granted Plaintiffs' request for attorneys' fees pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure as a sanction for the PA's failure to provide any discovery in the instant case. The PA's arguments with respect to this appeal are identical to its objections to the Report and Recommendation. See Notice of Appeal, at 2.
Also on April 19, 2004, Plaintiffs filed their own objections to the Report and Recommendation. Plaintiffs later withdrew these objections so as not to impede this Court from entering a final judgment. Notice of Withdrawal of Pls.' Objections to Portions of the Report & Recommendation Issued on Mar. 31, 2004, at 2. Thereafter, Plaintiffs responded to the PA's and PLO's objections and argued that the objections did not present anything new and were "hopelessly vague, frivolous, or irrelevant." Pls.' Resp. to Objections of the Palestinian Auth. & Palestine Liberation Organization to the Mag. Judge's Report & Recommendation, at 1. Plaintiffs requested that this Court make a de novo determination that rejects each of the objections, adopts the Report and Recommendation, and enters a final judgment against the PA and PLO. Id. at 2.
On April 27, 2004, Plaintiffs filed a motion, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, to alter and amend this Court's Decision and Order in Ungar IV regarding sovereign immunity. 315 F.Supp.2d at 164. Plaintiffs request that this Court reconsider and reverse its holding that the PA and PLO did not waive claims to sovereign immunity, and hold instead that "even assuming arguendo that Defendants were `foreign States,' they have waived any claims to sovereign immunity." Mem. in Supp. of Pls.' Mot. Pursuant to Fed.R.Civ.P. 59(e), at 4. The PA and PLO did not file any objections to Plaintiffs' motion.
The parties briefed and later argued these three matters on June 23, 2004, and they are now in order for decision. For the reasons that follow, this Court overrules each of the PA's and PLO's objections to Judge Martin's Report and Recommendation, adopts that Report and Recommendation in toto and attaches it hereto. The PA's appeal of Judge Martin's separate Order with respect to Plaintiffs' request for attorneys' fees and Plaintiffs' motion to amend this Court's decision in Ungar IV are denied. Furthermore, this Court directs the Clerk to enter default judgment against the PA and PLO as indicated below.
The PA and PLO raise six objections to Judge Martin's recommendation that this Court grant Plaintiffs' motions to enter default judgment. Since these motions are dispositive of the claims presented in the Amended Complaint, this Court must conduct a de novo review of Judge Martin's Report and Recommendation. See Harvard Pilgrim Health Care of New England v. Thompson, 318 F.Supp.2d 1, 2-3 (D.R.I.2004)( that a dispositive motion is one that extinguishes a party's claim or defense and is reviewed by a district court de novo where that court may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions). Therefore, although the PA and PLO do not present this Court with any new arguments, this writer will consider each objection in turn.
The PA's and PLO's first objection is that this Court lacks subject matter jurisdiction over the Amended Complaint due to the existence of non-justiciable political questions and the sovereign immunity provided in Section 2604 of the FSIA4 and Section 2337(2) of the ATA.5 Objections, at para. 1. The PA and PLO raised and this Court rejected the same arguments in Ungar II and Ungar IV and does so again now. For the reasons set forth in those opinions, this writer reiterates that the Amended Complaint does not present any non-justiciable political questions and neither the PA, the PLO, nor the entity called Palestine is or represents a foreign State and therefore, is not entitled to sovereign immunity. See Ungar IV, 315 F.Supp.2d at 174-187; Ungar II, 228 F.Supp.2d at 44-49. Therefore, the PA's and PLO's first objection to the Report and Recommendation is overruled.
The second objection raised by the PA and PLO is that this Court should not enter a default judgement because Plaintiffs' claims are legally insufficient. Objections, at para. 2. The PA and PLO argue that they "legitimately sought to protect and promote Palestinian interests" and lacked the intent required to engage in acts of international terrorism as defined by the ATA.6 Id. Furthermore, these Defendants argue that their conduct was not proximately related to Yaron Ungar's murder. Id.
Similar to their claims to sovereign immunity, the above are arguments that should have been raised in an answer to the Amended Complaint or through Defendants' participation in the...
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