Safra v. Palestinian Auth.

82 F.Supp.3d 37

Yitzhak Safra, et al., Plaintiffs

v.The Palestinian Authority, Defendant

Civil Action No. 14–669 CKK

United States District Court, District of Columbia.

Signed February 11, 2015

Andrew David Levy, Jessica Paulie Weber, Joseph B. Espo, Brown, Goldstein & Levy, L.L.P., Baltimore, MD, for Plaintiffs.

Charles Francisbenedict McAleer, Jr., Dawn E. Murphy–Johnson, Laura G. Ferguson, Miller & Chevalier Chartered, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

This action arises from a machine-gun attack on a group of worshippers at a Jewish holy site known as Joseph's Tomb, near the West Bank city of Nablus. Plaintiffs Yitzhak Safra and Natan Safra were injured in the shooting, which was carried out allegedly by Palestinian Authority (“PA”) security personnel. Another worshipper, Ben–Yosef Livnat, was killed in the attack. The third plaintiff in this action is Yisrael Safra, the father of Yitzhak and Natan, who was not present at the scene of the attack. Comp. ¶¶ 1–2. The defendant, the Palestinian Authority, is a non-sovereign government providing certain government services in the West Bank. Id. ¶ 3. Plaintiffs, who are U.S. citizens and residents of Israel,¹ bring two claims against the Palestinian Authority under the civil liability provision of the Anti–Terrorism Act (“ATA”), 18 U.S.C. § 2333(a).² They bring both a claim pursuant to section 2333(a) under a vicarious liability theory and a claim for aiding and abetting international terrorism. In addition, Plaintiffs also bring several nonfederal claims pursuant to the law of the State of Israel. Specifically, Yitzhak Safra and Natan Safra bring claims for assault and for battery, and all three plaintiffs bring a claim for negligence.

Before the Court is Defendant Palestinian Authority's [13] Motion to Dismiss, pursuant to Rules 12(b)(2) (lack of personal jurisdiction), 12(b)(3) (improper venue), 12(b)(5) (insufficient service of process), and 12(b)(6) (failure to state a claim upon which relief can be granted).³ Also before the Court is Plaintiffs' [17] Cross–Motion, in the Alternative, for Leave to Take Jurisdictional Discovery. Upon consideration of the pleadings,⁴ the relevant legal authorities, and the record as a whole, the Court GRANTS the Palestinian Authority's [13] Motion to Dismiss and DENIES Plaintiffs' [17] Cross–Motion. The Court concludes that it has no personal jurisdiction over the Palestinian Authority with respect to the claims at issue in this action. The Court also concludes that jurisdictional discovery is not warranted. Therefore, the Court does not consider Defendant's other arguments in favor of dismissal. Accordingly, the Court DISMISSES all claims against Defendant Palestinian Authority and dismisses this action in its entirety.

I. BACKGROUND

For the purposes of this motion, the Court accepts as true the factual allegations in Plaintiffs' Complaint. The Court does “not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C.Cir.2014). The Court recites the facts pertaining to the issues that the Court addresses with respect to the pending motion, focusing on those facts relevant to the jurisdictional inquiry in which the Court engages.

On April 24, 2011, Yitzhak Safra and Natan Safra,⁵ together with 15 others, visited Joseph's Tomb, a Jewish holy site, near the West Bank city of Nablus. Compl. ¶ 11. Yitzhak, Natan, and other Jewish worshippers entered the building housing Joseph's Tomb to pray while two others remained in the vehicles. Id. ¶ 12. After the worshippers entered the building, Palestinian Authority security forces led by Mohammed Saabneh allegedly began firing their automatic weapons. Id. ¶ 13. Yitzhak, Natan, and the other visitors immediately exited the building, running to their vehicles and attempting to drive off. Id. ¶ 14. As the visitors were attempting to leave, Saabneh allegedly announced to the other security personnel that he intended to fire at the vehicles and that he intended to cause death. Id. ¶ 15. Saabneh and Salah Hamed, another member of the Palestinian Authority security forces, allegedly fired their weapons at the vehicles at close range. Id. Yitzhak and Natan, as well as another person sitting in their vehicle, were wounded by the gunfire. Id. Noaf Wael, one of Saabneh's subordinates, allegedly opened fire at close range at another vehicle. Id. ¶¶ 16. One of the occupants of that car, Ben–Yosef Livnat, was shot in the neck and later died from his wounds. Id. ¶¶ 21–22. Because of the injuries and the traumatic experiences of his sons, Yisrael Safra claims that he has suffered emotionally. Id. ¶ 29. After the group of worshippers left, the Palestinian Authority security forces, under orders from Saabneh, allegedly attempted to remove evidence of the shooting from the scene of the attack by replacing the spent shell casings with rocks, in order to give the appearance that the security forces had been attacked by people throwing rocks at them.Id. ¶ 20. After the attack, a Palestinian Authority spokesperson justified the attack in an interview on Israeli radio. Id. ¶ 43.

Plaintiffs further allege that the attack described above is part of the Palestinian Authority's policy and practice of encouraging acts of terror and using terrorism to influence U.S. public opinion and policy.⁶ Compl. ¶ 10; see id. ¶¶ 36–39; Addicott Decl. ¶¶ 3–4. Specifically, Plaintiffs allege that the attack underlying this action was intended to influence the policies of the Israeli government and of the United States government regarding the right of Israelis to visit Jewish religious sites in the West Bank or to visit or live in the West Bank, as well as the policies of both governments regarding peace negotiations with the Palestinian Authority and Israel's presence in the West Bank.⁷ Compl. ¶ 47.c. In support of that claim and in support of jurisdiction, Plaintiffs allege that the Palestinian Authority operates an office in the United States, conducts public relations and other activities, and receives hundreds of millions of dollars in aid from the United States each year. Compl. ¶ 6. In response, Defendant argues that the office in question is the office of the General Delegation of the PLO to the U.S. See Def.'s Mot. to Dismiss at 12; Declaration of Ambassador Maen Areikat (“Areikat Decl.”), ECF No. 13–2, ¶ 15. Defendant describes the Palestine Liberation Organization, or PLO, as “an umbrella organization of various political parties and represents the nationalist aspirations of Palestinians, including those in the diaspora.” Areikat Decl. ¶ 14. Defendant argues that the office is not an office of the Palestinian Authority, and that, in fact, the Palestinian Authority, a non-sovereign government, is prohibited from having embassies, missions, or consulates abroad. See Def.'s Mot. to Dismiss at 12; Areikat Decl., ¶ 15.

II. LEGAL STANDARD

When personal jurisdiction is challenged under Rule 12(b)(2), the plaintiff bears the burden of establishing a factual basis for asserting personal jurisdiction over a defendant. See Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C.Cir.1990). At this stage, Plaintiffs “can satisfy that burden with a prima facie showing.' ” Mwani v. bin Laden, 417 F.3d 1, 7 (D.C.Cir.2005) (quoting Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C.Cir.1991) ). To do so, the plaintiff cannot rest on bare allegations or conclusory statements but “must allege specific acts connecting [the] defendant with the forum.” Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C.Cir.2001) (internal quotation marks omitted). “To make such a showing, the plaintiff is not required to adduce evidence that meets the standards of admissibility reserved for summary judgment and trial[;]” but rather, the plaintiffs may “rest [their] arguments on the pleadings, ‘bolstered by such affidavits and other written materials as [they] can otherwise obtain.’ ” Urban Inst. v. FINCON Servs., 681 F.Supp.2d 41, 44 (D.D.C.2010) (quoting Mwani, 417 F.3d at 7 ).

In order to obtain jurisdictional discovery a “plaintiff must have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant.” Caribbean Broad. Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C.Cir.1998) ; see also Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F.Supp.2d 1, 11 (D.D.C.2009) (holding that [j]urisdictional discovery ... is justified only if the plaintiff reasonably ‘demonstrates that it can supplement its jurisdictional allegations through discovery.’ ”) (quoting Kopff v. Battaglia, 425 F.Supp.2d 76, 89 (D.D.C.2006) ). “Mere conjecture or speculation” is not enough to justify jurisdictional discovery. FC Investment Group LC v. IFX Markets Ltd., 529 F.3d 1087, 1094 (D.C.Cir.2008).

III. DISCUSSION

The Palestinian Authority moves to dismiss this action under Rule 12(b)(2) for lack of personal jurisdiction, arguing that it has insufficient contacts with the United States to support jurisdiction. Because the Court agrees that there is neither general jurisdiction over the Palestinian Authority because of its contacts with the United States nor specific jurisdiction over the Palestinian Authority with respect to the specific claims in this action, the Court does not reach the Palestinian Authority's other arguments for dismissal.

A. Framework and Roadmap

Plaintiffs only claim that this Court has jurisdiction over the Palestinian Authority pursuant to Rule 4(k)(2),⁸ which states that service establishes jurisdiction if “the defendant is not subject to jurisdiction in any state's courts of general jurisdiction” and “exercising jurisdiction is consistent with the United States Constitution and laws.” Fed.R.Civ.P. 4(k)(2). To use this provision, Plaintiffs...