Gill v. Arab Bank, PLC
| Decision Date | 17 October 2012 |
| Docket Number | No. 11–CV–3706.,11–CV–3706. |
| Citation | 893 F.Supp.2d 474 |
| Parties | Mati GILL, Plaintiff, v. ARAB BANK, PLC, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
OPINION TEXT STARTS HERE
Peter Raven–Hansen, George Washington University Law School, Washington, DC, Gary M. Osen, Aaron Schlanger, Osen LLC, Oradell, NJ, Joshua D. Glatter, Ari Ungar, Osen LLC, Hackensack, NJ, for the Plaintiff.
Kevin Walsh, Steven J. Young, Douglas Walter Mateyaschuk, DLA Piper LLP, New York, NY, for the Defendant.
AMENDED MEMORANDUM AND ORDER GRANTING IN PART MOTION TO DISMISS
I. Introduction
This memorandum and order deals with defendant's motion to dismiss on the pleadings, which is granted in part. See Part IV.B, infra. After further discovery, the court will consider defendant's motion for summary judgment. See Scheduling Order, Gill v. Arab Bank, PLC, No. 11–CV–3706 (E.D.N.Y. Aug. 22, 2012), CM/ECF No. 58.
Mati Gill, who possesses American and Israeli citizenship, sues Arab Bank plc (the “Bank”), for money damages. He was wounded in 2008 by gunshots fired from Gaza into Israel. The Islamic Resistance Movement (“Hamas”) claimed “credit” for the shooting. Hamas has been officially characterized by the United States government as a “terrorist” organization. SeeDesignation of Foreign Terrorist Organizations, 62 Fed.Reg. 52,650 (Oct. 8, 1997); Exec. Ord. No. 12,947, 60 Fed.Reg. 5079, 5081 (Jan. 25, 1995); see also Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F.Supp.2d 57, 63 (D.D.C.2002). It is effectively in political and military control of Gaza. See, e.g., Zahren v. Gonzales, 487 F.3d 1039, 1040 (7th Cir.2007), vacated on reh'g on other grounds sub nom. Zahren v. Holder, 637 F.3d 698 (7th Cir.2011).
The plaintiff asserts five causes of action. One of these—the first, depending on a theory of aiding and abetting—is dismissed for the reasons stated below. All of the others will require essentially the same proof of unlawful action, state of mind, and causation. See Part III.C.4, infra.
The Bank has moved, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the amended complaint. A number of complex legal arguments have been raised in support of its motion. It is contended principally that:
1. The court lacks subject matter jurisdiction over the case pursuant to the political question doctrine;
2. The plaintiff's claims must be dismissed, pursuant to 18 U.S.C. § 2336(a), since his injuries were suffered during the course of an armed conflict between military forces;
3. Recovery on an aiding-and-abetting theory is precluded; and
4. The plaintiff has failed to adequately allege all of the elements of a claim under the civil remedy provision of the relevant anti-terrorism statute.
See generally Memorandum of Law of Defendant Arab Bank plc in Support of Its Motion to Dismiss the Amended Complaint (“Def. Mem.”), Gill v. Arab Bank, PLC, No. 11–CV–3706 (E.D.N.Y. Apr. 9, 2012), CM/ECF No. 21.
The complex factual and legal issues presented preclude disposing of this litigation on defendant's motion directed at the pleadings. See Parts III and IV, infra. Plaintiff's amended complaint, except for his aiding and abetting claim, survives a Rule 12 attack. See Parts III.C.3 and IV.B, infra; see also Part III.C.5, infra. The court has instructed the defendant to file a motion for summary judgment since a factual record is required for a dispositive motion to be properly considered. See June 28, 2012 Hr'g Tr. 35; see also ...
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