Estates of Ungar v. Palestinian Authority, C.A. No. 00-105L.
| Decision Date | 13 May 2009 |
| Docket Number | C.A. No. 00-105L. |
| Citation | 613 F.Supp.2d 219 |
| 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 Michael 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. |
| Court | U.S. District Court — District of Rhode Island |
David J. Strachman, McIntyre, Tate, Lynch & Holt Counsellors at Law, Providence, RI, for Plaintiffs.
Deming E. Sherman, Edwards Angell Palmer & Dodge LLP, Providence, RI, Mark J. Rochon, Richard A. Hibey, Miller & Chevalier Chartered, Washington, DC, for Defendants.
This matter is before the Court on the Motion of Defendants the Palestinian Authority ("the PA") and the Palestine Liberation Organization ("the PLO") to set aside the default judgment that was entered against them by this Court in 2004.
In 1996, U.S. citizen Yaron Ungar and his Israeli wife, Efrat Ungar, were murdered in Israel by Hamas terrorists. Plaintiffs, who are their surviving family members and the administrator of their estates, brought this action pursuant to the Antiterrorism Act of 1991, 18 U.S.C. § 2333 et seq. This federal statute provides a cause of action for American nationals injured in their person, property or business by an act of international terrorism. 18 U.S.C.A. § 2333(a) (1992). Plaintiffs named as defendants the Palestinian Authority ("the PA"), the Palestine Liberation Organization ("the PLO"), the Hamas-Islamic Resistance Movement (a.k.a. "Harakat Al-Muqawama Al-Islamiyya") (hereinafter "Hamas"), various officials of the PA and the PLO including Yasser Arafat, and individual Hamas members who participated in the deadly attack on the Ungars.
No Defendant has answered Plaintiffs' Amended Complaint, and appearances have been entered only on behalf of Defendants PA and PLO. Nevertheless, this matter has generated no small amount of legal activity, resulting in five previous decisions written by this Court, several Reports written by Magistrate Judge David Martin of this Court, as well as one published decision, and one unpublished, from the First Circuit Court of Appeals. Eight years of legal wrangling culminated in a default judgment in the amount of $116,409,123.00, which was entered jointly and severally against Defendants Hamas, the PLO and the PA. Citing Federal Rules of Civil Procedure Rule 60(b)(6), the PLO and PA now seek to have this judgment vacated, on the grounds that exceptional circumstances warrant such relief. The Court has heard oral arguments, reviewed the parties' written submissions and examined the pertinent law, and now determines that Defendants' Motion must be denied for reasons explained below.
Factual background
On June 9, 1996, Yaron and Efrat Ungar were traveling home from a wedding with their nine-month old son, Plaintiff Yishai Ungar, in the back seat, when a group of men in another vehicle pulled up along side of them and opened fire. Yaron and Efrat were killed, but their baby was unharmed. Their assailants included Defendants Abdel Rahman Ismail Abdel Rahman Ghanimat, Jamal Abdel Fatah Tzabich Al Hor, and Raed Fakhri Abu Hamdiya, all members of Hamas. Two of the assailants, along with co-conspirator Defendant Iman Mahmud Hassan Fuad Kafishe, were convicted in an Israeli court on charges related to this incident. The third assailant remains at large. In 1999, Rhode Island attorney David Strachman was appointed Administrator of the estates of Yaron and Efrat Ungar, by the appropriate Israeli court. Strachman filed the present lawsuit on behalf of the estates in 2000. Other Plaintiffs include the Ungar's firstborn child, Dvir Ungar, who was not in the car during the shooting, as well as the couple's parents and siblings.
The court will briefly summarize the litigation in this case to date. For more detailed treatments, the reader is advised to examine the Court's prior written decisions in this matter.
In 2001, this Court addressed the PA and PLO's Motion to Dismiss, brought pursuant to Federal Rules of Civil Procedure Rule 12(b), arguing that the Court lacked both subject matter jurisdiction over this case and personal jurisdiction over these Defendants, that there was insufficient service of process, improper venue, inconvenient forum, and that the Complaint failed to state a claim for which relief could be granted.
In its decision, this Court concluded that subject matter jurisdiction was present because the cause of action was properly based on federal statute, 18 U.S.C. § 2333. Estates of Ungar ex rel. Strachman v. Palestinian, 153 F.Supp.2d 76, 86 (D.R.I. 2001) ("Ungar I"). Moreover, the Court's exercise of personal jurisdiction over the PA and the PLO was proper based upon these organizations' contacts with the United States. Id. at 88. Defendants' arguments based on venue, service of process and the convenience of the forum were likewise deemed without merit. Id. at 95, 100.
This Court found that it lacked personal jurisdiction over the individual PA and PLO officials named as Defendants, and claims against them were dismissed. Id. at 95. All claims brought on behalf of Efrat Ungar and her estate pursuant to the Antiterrorism Act were dismissed because her status as an Israeli citizen excluded her from the scope of the Act. Id. at 97, see 18 U.S.C. § 2333. Tort claims based on Rhode Island state law were also dismissed, because the Court determined that Israeli law would control any non-federal claims. Id. at 99. Plaintiffs were granted leave to amend the complaint to add properly-pled tort claims. Id. at 100.
Plaintiffs revised their Complaint, dropping claims on behalf of Efrat Ungar from Count I, the claim brought under the Antiterrorism Act, and adding claims for negligence, assault and breach of statutory obligation under the Israeli Civil Wrongs Ordinances. The Amended Complaint retains allegations against all original Defendants.
At the conclusion of these proceedings, counsel for the PA and the PLO, former United States Attorney General Ramsey Clark, stated in open court that he had spoken personally to Yasser Arafat, the leader of both the PA and the PLO, and was instructed not to file an answer or defend this case on the merits because Arafat would not recognize the jurisdiction of this or any American court over the PA or PLO.
In 2002, the PA and the PLO filed a second Motion to Dismiss. This Motion alleged that the Amended Complaint failed to state claims for which relief could be granted because the ultimate resolution of the claims would require an analysis of non-justiciable issues. Specifically, Defendants argued that Plaintiffs' claims could not be properly litigated in this Court because of the complex and sensitive political issues involved, the difficulty in obtaining information from the war-torn region, and the lack of manageable judicial standards. To strengthen their argument, Defendants asserted that they were entitled to sovereign immunity because Palestine was very close to gaining full membership to the United Nations. These arguments were rejected by this Court and the Motion was denied. Estates of Ungar ex rel. Strachman v. Pales. Auth., 228 F.Supp.2d 40, 49 (D.R.I.2002) ("Ungar II").
Along with their Motion, Defendants petitioned the Court to reconsider its ruling in Ungar I. In the alternative, Defendants requested the right to file an interlocutory appeal of Ungar I, and called for the matter to be stayed while such appeal was heard. These requests were also denied by the Court. Ungar II, 228 F.Supp.2d at 51.
Following the release of this Court's decision, the PA and the PLO then filed a Motion for Reconsideration of Ungar II, which was denied. Next, these Defendants filed an interlocutory appeal of the denial of the Motion for Reconsideration. In an unpublished decision, the First Circuit denied the Motion and affirmed this Court's rulings in Ungar II. At the same time, the First Circuit indicated that Defendants' opportunity to develop a sovereign immunity defense was still available because Defendants had not yet answered the complaint. Ungar, et al. v. The Palestinian Liberation Organization, et al., 2003 WL 21254790 (C.A.1).
Just before the First Circuit issued its judgment, Judge Martin, in April 2003, directed the Clerk of this Court to enter a default against the PA and the PLO for their failure to answer the Amended Complaint. In a subsequent Report and Recommendation,1 Judge Martin recounts that he had determined, at this juncture, that "the Palestinian Defendants' failure to file an answer to the Amended Complaint was the result of a deliberate choice and not due to an inability to file an answer." Estates of Ungar & Ungar v. Palestinian Authority, 325 F.Supp.2d 15, 40 (D.R.I. 2004) ("Ungar V").
In February and April of 2003, Plaintiffs twice moved for the entry of default judgment against these Defendants, citing Defendants' repeated refusal to comply with discovery requests and discovery orders. These motions were referred to Judge Martin. In May 2003, Judge Martin declined to hear arguments on the motions, "electing instead to explicitly warn Defendants that their continued failure to comply with discovery could result in the entry of default judgment against them." Ungar V at 41....
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