Fuld v. Palestine Liberation Org.

578 F.Supp.3d 577

Miriam FULD et al., Plaintiffs,

v.The PALESTINE LIBERATION ORGANIZATION et al., Defendants.

20-CV-3374 (JMF)

United States District Court, S.D. New York.

Signed January 6, 2022

Jeffrey Fleischmann, New York, NY, for Plaintiffs.

Gassan Adnan Baloul, Joseph Stewart Alonzo, Mitchell Rand Berger, Squire Patton Boggs (US) LLP, New York, NY, for Defendants.

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

The Due Process Clauses of the Fifth and Fourteenth Amendments have long been interpreted to mean that a party cannot be subjected to the jurisdiction of a forum's courts unless the party has certain minimum contacts with the forum. Courts have recognized three independent bases for such "personal jurisdiction": first, general jurisdiction, when the defendant's affiliations with the forum in which suit is brought are so constant and pervasive as to render it essentially at home in the forum; second, specific jurisdiction, when there is a sufficient connection between the underlying controversy and the forum; and third, a defendant's knowing and voluntary consent, whether express or implied, to suit in the forum.

To date, courts have held that these bases are insufficient to sustain lawsuits brought by family members of American victims of terrorist attacks in Israel and the occupied territories under the Anti-Terrorism Act of 1992 ("ATA"), 18 U.S.C. § 2331 et seq. , against the Palestine Liberation Organization ("PLO") and the Palestinian Authority ("PA"). In 2019, Congress responded to these rulings by enacting the Promoting Security and Justice for Victims of Terrorism Act ("PSJVTA"), Pub. L. No. 116-94, div. J, tit. IX, § 903, 133 Stat. 3082, which includes innovative provisions intended to ensure that such lawsuits are not dismissed for want of personal jurisdiction. Specifically, the statute provides that the PLO and PA would be "deemed to have consented to personal jurisdiction" in any case brought under the ATA if, after a date certain, they engaged in specified conduct — conduct in which they had long engaged.

The novel question presented in this case — brought by the family members of a Jewish American killed in a 2018 terrorist attack in Gush Etzion, a settlement located in the West Bank, against the PLO and the PA for their alleged roles in encouraging and supporting the attack — is whether this "deemed consent" jurisdiction is consistent with the requirements of due process. For the reasons that follow, the Court concludes that it is not. In brief, Congress cannot, consistent with the Constitution, simply decree that any conduct, without regard for its connections to the United States generally or to litigation in the United States specifically, signals a party's intent to submit to the jurisdiction of a United States court. To hold otherwise would effectively mean that there are no constitutional limitations on the exercise of personal jurisdiction as a legislature could simply create such jurisdiction out of whole cloth by deeming any conduct — even, for example, the conduct that gives rise to the cause of action itself — to be "consent." The Court cannot and will not acquiesce in what amounts to a legislative sleight of hand at the expense of a fundamental constitutional right and, thus, is compelled to grant the PLO's and PA's motion to dismiss for lack of personal jurisdiction.

BACKGROUND

Plaintiffs in this case are the wife and four children of Ari Yoel Fuld, an American citizen who, on September 16, 2018, was brutally stabbed to death outside a mall in Gush Etzion, a settlement located in the West Bank. See ECF No. 21 ("Am. Compl."), ¶¶ 106-110. Plaintiffs allege, on information and belief, that Khalil Yousef Ali Jabarin, the murderer, targeted Fuld because he was a Jewish American. See id. ¶ 107; see also id. ¶ 101 (alleging, on information and belief, that Jabarin "decided to become ... a ‘martyr[ ]’ and kill Jews"). In this suit, however, they do not seek relief from Jabarin (who was apprehended by Israeli authorities after the murder). Instead, they seek hundreds of millions of dollars in damages from the PA, which was established by the 1993 Oslo Accords to exercise interim governance authority for the Palestinian people in Gaza and the West Bank, and the PLO, which has been recognized by the United Nations as the representative of the Palestinian people, on the ground that they "encouraged, incentivized, and assisted" the attack on Fuld. Id. ¶ 4. They do so principally pursuant to the ATA, as amended by the PSJVTA. See id. ¶ 1.

Congress enacted the ATA in 1992 in an effort "to develop a comprehensive legal response to international terrorism." H.R. Rep. No. 102-1040, at 5 (1992) ("1992 House Report"); see Pub. L. No. 102-572, § 1003(a), 106 Stat. 4506, 4521-24 (1992) (adding 18 U.S.C. §§ 2331, 2333 - 2338 ). The statute created a civil damages remedy for United States nationals harmed by an act of international terrorism committed by a foreign terrorist organization. See 18 U.S.C. § 2333(a). To the extent relevant here, it permits such United States nationals to sue "any person who aids and abets, by knowingly providing substantial assistance, or who conspires [to commit] an act of international terrorism." Id. § 2333(d)(2). Among other things, it provides for treble damages plus attorney's fees and costs. See id. § 2333(a).

In 2004, a group of eleven American families (the "Sokolow plaintiffs") sued the PA and PLO under the ATA for various terrorist attacks in Israel. See Waldman v. Palestine Liberation Org. , 835 F.3d 317, 322, 324 (2d Cir. 2016) (" Waldman I "). The PA and PLO moved repeatedly to dismiss the Sokolow plaintiffs’ claims for lack of personal jurisdiction, but the district court denied their motions, reasoning that "the totality of activities in the United States by the PLO and the PA justifies the exercise of general personal jurisdiction." Sokolow v. Palestine Liberation Org. , No. 04-CV-397 (GBD), 2011 WL 1345086, at *3 (S.D.N.Y. Mar. 30, 2011), vacated sub nom. Waldman I , 835 F.3d 317. After more than a decade of litigation and a seven-week trial, a jury returned a verdict in favor of the Sokolow plaintiffs and awarded them more than $650 million pursuant to the ATA's treble damages provision. See Waldman I , 835 F.3d at 322, 326.

In the meantime, in Daimler AG v. Bauman , 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014), the Supreme Court clarified that "general" personal jurisdiction is appropriate only in a forum where the defendant is "essentially at home," which, in the case of a non-natural person, is usually limited to its place of incorporation or principal place of business, see id. at 136-39, 134 S.Ct. 746. In the wake of Daimler , the Second Circuit vacated the judgment in Sokolow , holding in Waldman I that the district court's exercise of personal jurisdiction over the PA and PLO had violated the Due Process Clause of the Fifth Amendment because neither defendant was "at home" in the United States and the terrorist attacks at issue "were not sufficiently connected to the United States" to support "specific personal jurisdiction." 835 F.3d at 337. In a trio of similar cases against the PA and PLO, the D.C. Circuit reached the same conclusions. See Shatsky v. Palestine Liberation Org. , 955 F.3d 1016, 1036-37 (D.C. Cir. 2020) ; Est. of Klieman v. Palestinian Auth. , 923 F.3d 1115, 1123-24 (D.C. Cir. 2019), cert. granted, judgment vacated , ––– U.S. ––––, 140 S. Ct. 2713, 206 L.Ed.2d 851 (2020), and opinion reinstated in part , 820 Fed.Appx. 11 (D.C. Cir. 2020) ; Livnat v. Palestinian Auth. , 851 F.3d 45, 56-57 (D.C. Cir. 2017).

In 2018, Congress responded to these decisions by enacting the Anti-Terrorism Clarification Act ("ATCA"), Pub. L. No. 115-253, § 4, 132 Stat. 3183, 3184 (adding 18 U.S.C. § 2334(e) ). Section 4 of the ATCA provided that, "for purposes of any civil action under [the ATA], a defendant shall be deemed to have consented to personal jurisdiction in such civil action if," after January 31, 2019, the defendant "accepts" certain "form[s] of assistance" from the United States or maintains an office within the United States pursuant to a waiver or suspension of 22 U.S.C. § 5202 (which otherwise prohibits the PLO from maintaining an office in the United States). Id. Within days of the ATCA's enactment, the Sokolow plaintiffs filed a motion asking the Second Circuit to recall the mandate in Waldman I , arguing that Section 4 of the ATCA provided personal jurisdiction over the PA and PLO. See Waldman v. Palestine Liberation Org. , 925 F.3d 570, 574 (2d Cir. 2019) (per curiam) (" Waldman II "), cert. granted, judgment vacated sub nom. Sokolow v. Palestine Liberation Org. , ––– U.S. ––––, 140 S. Ct. 2714, 206 L.Ed.2d 852 (2020). The Second Circuit denied their motion, finding that the plaintiffs had failed to show "that either factual predicate of Section 4 of the ATCA ha[d] been satisfied." Id. Once again, the D.C. Circuit reached the same conclusions. See Klieman , 923 F.3d at 1128.

The plaintiffs in these cases filed petitions for certiorari in the Supreme Court. On December 20, 2019, while their petitions were pending, Congress intervened again by passing the PSJVTA. To the extent relevant here, the PSJVTA superseded the personal jurisdiction provisions in the ATCA. It amended the definition of "defendant" to specifically include the PA, the PLO, and their affiliates and successors. Pub. L. No. 116-94, div. J, tit. IX, § 903(b)(5), 133 Stat. 3082, 3083. And it provided two new factual predicates for conduct that will be "deemed" consent to personal jurisdiction for civil actions under the ATA. As amended by the PSJVTA, the ATA now provides, first, that a defendant "shall be deemed to have consented to personal jurisdiction" in ATA cases if, after April 18, 2020, it "makes any payment, directly or indirectly," to either (i) a payee designated by someone imprisoned for an act of terrorism that injured or killed an...