Estates of Ungar v. Palestinian Authority, C.A.No. 00-105L.

• Decision Date: 23 April 2004
• Docket Number: C.A.No. 00-105L.
• 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. "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.<SMALL><SUP>2</SUP></SMALL&gt
• Court: U.S. District Court — District of Rhode Island

315 F.Supp.2d 164

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,¹ 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.²

C.A.No. 00-105L.

United States District Court, D. Rhode Island.

April 23, 2004.

COPYRIGHT MATERIAL OMITTED

David J. Strachman, Esq., McIntyre, Tate, Lynch & Holt, Providence, RI, for Plaintiffs.

Deming E. Sherman, Esq., Annemarie M. Carney, Esq., Edwards & Angell, Providence, RI, Ramsey Clark, Esq., Lawrence W. Schilling, New York City, for Defendants.

DECISION AND ORDER

LAGUEUX, Senior District Judge.

Plaintiffs filed the present action pursuant to 18 U.S.C. § 2333 et seq. after Yaron Ungar, an American citizen, and his wife, Efrat Ungar, were killed in Israel by the terrorist group Hamas. Enacted as part of the Antiterrorism Act of 1991 (hereinafter "ATA"), 18 U.S.C.A. § 2333³, 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). The Amended Complaint names as defendants, the Palestinian Authority (hereinafter, "PA"), the Palestinian Liberation Organization (hereinafter, "PLO"), Hamas-Islamic Resistance Movement (a.k.a. "Harakat Al-Muqawama Al-Islamiyya") (hereinafter, "Hamas"), and the individual Hamas members responsible for the murder of the Ungars.

This matter is before the Court on the motion of the Defendants PA and PLO to dismiss the Amended Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. These Defendants argue that this Court lacks subject matter jurisdiction over the Amended Complaint due to the existence of non-justiciable political questions and sovereign immunity. This writer addressed similar arguments in Ungar II and arrives at the same conclusions herein. This Court has subject matter jurisdiction because the instant case arises under federal law, namely, the ATA. The doctrines of non-justiciability and sovereign immunity do not divest this Court of jurisdiction over the Amended Complaint for two reasons. First, there are no non-justiciable political questions in this case because the Amended Complaint presents tort claims raising issues that are constitutionally committed only to the judicial branch of government. Second, the PA and PLO do not constitute or represent a State as defined by the law of the United States and applicable international law because both entities lack a defined territory with a permanent population controlled by a government that has the capacity to enter into foreign relations. Therefore, for the reasons that follow, this Court concludes that the motion of the PA and PLO to dismiss must be denied.

I. Background and Procedural History The Murders of Yaron and Efrat Ungar

As this writer discussed in Estates of Ungar ex rel. Strachman v. Palestinian Authority, 153 F.Supp.2d 76, 82-83 (D.R.I.2001)("Ungar I")and Estates of Ungar ex rel. Strachman v. Palestinian Authority, 228 F.Supp.2d 40, 41 (D.R.I.2002)("Ungar II"), 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 Raed Fakhri Abu Hamdiya ("Abu Hamdiya") approached their car. Abdel Rahman Ismail Abdel Rahman Ghanimat ("Rahman Ghanimat") and Jamal Abdel Fatah Tzabich Al Hor ("Hor") opened fire on the Ungars' car and murdered Yaron and Efrat Ungar in cold blood. Yishai Ungar survived the attack uninjured. Plaintiff, Dvir Ungar, the Ungars' older son, was not in the car during the shooting.

The men involved in the shooting were members of Hamas, a terrorist group dedicated to murdering Israeli and Jewish people through bombings, shootings, and other violent acts. Hamas is based in and operates from areas controlled by the PA and PLO and Yasser Arafat, the head of the PLO. Small groups of Hamas members organize cells to carry out their terrorist activities. Abu Hamdiya, Rahman Ghanimat Hor, Ibrahim Ghanimat and Iman Mahmud Hassan Fuad Kafishe ("Kafishe") comprised the terrorist cell that murdered the Ungars. Abu Hamdiya, Rahman Ghanimat, Hor, and Kafishe were convicted in the Israeli courts of membership in Hamas and on charges related to the murders of Yaron and Efrat Ungar. An arrest warrant was issued for defendant Ibrahim Ghanimat who remains at large and is believed to be residing in an area controlled by the PA and PLO.

On October 25, 1999, an Israeli court appointed Rhode Island attorney David Strachman ("Strachman") administrator of the estates of Yaron and Efrat Ungar. Strachman was to administer and realize assets, rights, and causes of action to pursue within the United States on behalf of the estates. Strachman initiated the instant litigation on March 13, 2000, utilizing the ATA.

Ungar I: The First Motion to Dismiss

In Ungar I, this writer addressed several grounds raised in the PA and PLO Defendants' motion to dismiss. This Court determined that it had subject matter and personal jurisdiction over the PA and PLO, found that venue and service of process were proper, and denied the motion to dismiss due to an inconvenient forum. 153 F.Supp.2d at 100. This writer dismissed the claims under § 2333 of the ATA involving Efrat Ungar's estate because the Complaint did not allege that Efrat Ungar was an American national. Ungar I, 153 F.Supp.2d at 97. The PA and PLO Defendants' motion to dismiss the remaining counts under § 2333 was denied. Id. at 100. This Court dismissed all claims against Defendants Yasser Arafat, Jibril Rajoub, Muhammed Dahlan, Amin Al-Hindi, Twfik Tirawi, and Razi Jabali (all PA or PLO officials) due to a lack of personal jurisdiction. Id. This Court granted the motion to dismiss the state law claims for death by wrongful act, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. Id. Finally, Plaintiffs were granted leave to amend the Complaint because they had not pled the state law claims under Israeli law as required by Rhode Island's choice of law rules in tort matters. Id.

Plaintiffs File an Amended Complaint

Plaintiffs then filed an Amended Complaint on August 23, 2001, which states four causes of action. With the exception of Count I, all claims are brought on behalf of all Plaintiffs against all Defendants. Count I of the Amended Complaint 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.

The factual basis for each claim is essentially the same. Plaintiffs allege that the PA and PLO Defendants repeatedly praised Hamas and its operatives, who engaged in terrorist activities and violent acts against Jewish civilians and Israeli targets. Pls.' Am. Compl. ¶ 43. Plaintiffs also allege that the PA and PLO Defendants "praised, advocated, encouraged, solicited, and incited" these terrorist activities. Id. In addition, Plaintiffs allege that Yaron and Efrat Ungar were killed by these acts of international terrorism and that the individually named Defendants aided and abetted such acts. Id. ¶ 47. These killings allegedly caused the decedents and Plaintiffs to suffer severe physical, emotional, and financial injuries. Id.

Count I of the Amended Complaint asserts that Defendants engaged in acts of international terrorism as defined in 18 U.S.C. § 2331. Specifically, Plaintiffs allege that the actions of Defendants: 1)constitute violations of United States' criminal law and would be criminal violations if committed within the United States' jurisdiction; 2)appear to be intended to intimidate or coerce a civilian population and influence the policy of a government by intimidation or coercion; and 3)occurred outside the United States. Pls.' Am. Compl. ¶¶ 41-43.

Count II alleges negligence under Section 35 of the Israeli Civil Wrongs Ordinances ("ICWO"). Plaintiffs allege that a reasonable person under the same circumstances would have foreseen that Plaintiffs would likely be injured by the acts and omissions of Defendants. Pls.' Am. Compl. ¶ 60. The Amended Complaint avers that the PA and PLO and their agents, acting within the scope of their employment and agency, failed to use the skill and degree of caution that a reasonable person would have used under similar circumstances. Id. at ¶ 59.

Count III alleges breaches of statutory obligations under Section 63 of the ICWO. That Section provides a cause of action for the failure to comply with an obligation imposed by any enactment of the ICWO. Some of the statutory obligations allegedly breached by Defendants include Section 300 (murder), Section 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, ("Interim Agreement").⁴ Article XV of the Interim Agreement was enacted into law by Israel and imposes a duty on public officials to prevent acts of terrorism in the West Bank and Gaza Strip. See Pls.' Am. Compl. at ¶ 69(a)-(b),(d).

Count IV alleges assault under ICWO Section 23. That section provides a cause of action for the intentional use of any kind of force against a person's body without his or her consent. Plaintiffs allege that Hamas and the individual...