Sokolow v. Palestine Liberation Organizat

Filing

OPINION, vacating the district court judgment and remanding the case to the district court, by PNL, CFD, C.JJ., KOELTL, FILED.[1853117] [15-3135, 15-3151]

Case 15-3135, Document 205-1, 08/31/2016, 1853117, Page1 of 61
15-3135(L)
Sokolow v. Palestine Liberation Organization

UNITED STATES COURT OF APPEALS
FOR

THE

SECOND CIRCUIT

____________________________________
August Term, 2015
Argued:

April 12, 2016

Decided: August 31, 2016

Docket Nos. 15-3135-cv(L); 15-3151-cv(XAP)
____________________________________

EVA WALDMAN, REVITAL BAUER, INDIVIDUALLY AND AS NATURAL GUARDIAN OF
PLAINTIFFS YEHONATHON BAUER, BINYAMIN BAUER, DANIEL BAUER AND YEHUDA
BAUER, SHAUL MANDELKORN, NURIT MANDELKORN, OZ JOSEPH GUETTA, MINOR,
BY HIS NEXT FRIEND AND GUARDIAN VARDA GUETTA, VARDA GUETTA,
INDIVIDUALLY AND AS NATURAL GUARDIAN OF PLAINTIFF OZ JOSEPH GUETTA,
NORMAN GRITZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF DAVID GRITZ, MARK I. SOKOLOW, INDIVIDUALLY AND AS A
NATURAL GUARDIAN OF PLAINTIFF JAMIE A. SOKOLOW, RENA M. SOKOLOW,
INDIVIDUALLY AND AS A NATURAL GUARDIAN OF PLAINTIFF JAIME A. SOKOLOW,
JAMIE A. SOKOLOW, MINOR, BY HER NEXT FRIENDS AND GUARDIAN MARK I.
SOKOLOW AND RENA M. SOKOLOW, LAUREN M. SOKOLOW, ELANA R. SOKOLOW,
SHAYNA EILEEN GOULD, RONALD ALLAN GOULD, ELISE JANET GOULD, JESSICA
RINE, SHMUEL WALDMAN, HENNA NOVACK WALDMAN, MORRIS WALDMAN, ALAN
J. BAUER, INDIVIDUALLY AND AS NATURAL GUARDIAN OF PLAINTIFFS
YEHONATHON BAUER, BINYAMIN BAUER, DANIEL BAUER AND YEHUDA BAUER,
YEHONATHON BAUER, MINOR, BY HIS NEXT FRIEND AND GUARDIANS DR. ALAN
J. BAUER AND REVITAL BAUER, BINYAMIN BAUER, MINOR, BY HIS NEXT
FRIEND AND GUARDIANS DR. ALAN J. BAUER AND REVITAL BAUER, DANIEL
BAUER, MINOR, BY HIS NEXT FRIEND AND GUARDIANS DR. ALAN J. BAUER AND
REVITAL BAUER, YEHUDA BAUER, MINOR, BY HIS NEXT FRIEND AND GUARDIANS
DR. ALAN J. BAUER AND REVITAL BAUER, RABBI LEONARD MANDELKORN,
KATHERINE BAKER, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF BENJAMIN BLUTSTEIN, REBEKAH BLUTSTEIN, RICHARD BLUTSTEIN,
INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BENJAMIN
BLUTSTEIN, LARRY CARTER, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF DIANE (“DINA”) CARTER, SHAUN COFFEL, DIANNE
COULTER MILLER, ROBERT L COULTER, JR., ROBERT L. COULTER, SR.,
INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JANIS
RUTH COULTER, CHANA BRACHA GOLDBERG, MINOR, BY HER NEXT FRIEND AND

Case 15-3135, Document 205-1, 08/31/2016, 1853117, Page2 of 61

GUARDIAN KAREN GOLDBERG, ELIEZER SIMCHA GOLDBERG, MINOR, BY HER NEXT
FRIEND AND GUARDIAN KAREN GOLDBERG, ESTHER ZAHAVA GOLDBERG, MINOR,
BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG, KAREN GOLDBERG,
INDIVIDUALLY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF STUART
SCOTT GOLDBERG/NATURAL GUARDIAN OF PLAINTIFFS CHANA BRACHA GOLDBERG,
ESTHER ZAHAVA GOLDBERG, YITZHAK SHALOM GOLDBERG, SHOSHANA MALKA
GOLDBERG, ELIEZER SIMCHA GOLDBERG, YAAKOV MOSHE GOLDBERG, TZVI
YEHOSHUA GOLDBERG, SHOSHANA MALKA GOLDBERG, MINOR, BY HER NEXT
FRIEND AND GUARDIAN KAREN GOLDBERG, TZVI YEHOSHUA GOLDBERG, MINOR,
BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG, YAAKOV MOSHE
GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG,
YITZHAK SHALOM GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN
GOLDBERG, NEVENKA GRITZ, SOLE HEIR OF NORMAN GRITZ, DECEASED,

Plaintiffs – Appellees - Cross-Appellants,
—v.—
PALESTINE LIBERATION ORGANIZATION, PALESTINIAN AUTHORITY, AKA
PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY AND OR PALESTINIAN
COUNCIL AND OR PALESTINIAN NATIONAL AUTHORITY,
Defendants - Appellants - Cross-Appellees,
YASSER ARAFAT, MARWIN BIN KHATIB BARGHOUTI, AHMED TALEB MUSTAPHA
BARGHOUTI, AKA AL-FARANSI, NASSER MAHMOUD AHMED AWEIS, MAJID ALMASRI, AKA ABU MOJAHED, MAHMOUD AL-TITI, MOHAMMED ABDEL RAHMAN
SALAM MASALAH, AKA ABU SATKHAH, FARAS SADAK MOHAMMED GHANEM, AKA
HITAWI, MOHAMMED SAMI IBRAHIM ABDULLAH, ESTATE OF SAID RAMADAN,
DECEASED, ABDEL KARIM RATAB YUNIS AWEIS, NASSER JAMAL MOUSA
SHAWISH, TOUFIK TIRAWI, HUSSEIN AL-SHAYKH, SANA'A MUHAMMED
SHEHADEH, KAIRA SAID ALI SADI, ESTATE OF MOHAMMED HASHAIKA,
DECEASED, MUNZAR MAHMOUD KHALIL NOOR, ESTATE OF WAFA IDRIS,
DECEASED, ESTATE OF MAZAN FARITACH, DECEASED, ESTATE OF MUHANAD ABU
HALAWA, DECEASED, JOHN DOES, 1-99, HASSAN ABDEL RAHMAN,
Defendants.
___________________________________

2

Case 15-3135, Document 205-1, 08/31/2016, 1853117, Page3 of 61

Before: LEVAL

1

AND

DRONEY, Circuit Judges, and KOELTL, District
Judge.*

The defendants-appellants-cross-appellees (“defendants”)

2

appeal from a judgment of the United States District Court for

3

the Southern District of New York (Daniels, J.) in favor of the

4

plaintiffs-appellees-cross-appellants (“plaintiffs”).

5

found the defendants---the Palestine Liberation Organization and

6

the Palestinian Authority---liable under the Anti-Terrorism Act

7

(“ATA”), 18 U.S.C. § 2333(a), for various terror attacks in

8

Israel that killed or wounded United States citizens.

9

awarded the plaintiffs damages of $218.5 million, an amount that

A jury

The jury

10

was trebled automatically pursuant to the ATA, 18 U.S.C.

11

§ 2333(a), bringing the total award to $655.5 million.

12

defendants appeal, arguing that the district court lacked

13

general and specific personal jurisdiction over the defendants,

14

and, in the alternative, seek a new trial because the district

15

court abused its discretion by allowing certain testimony by two

16

expert witnesses.

17

Court to reinstate claims the district court dismissed.

The

The plaintiffs cross-appeal, asking this

18

We vacate the judgment of the district court and remand the

19

case with instructions to dismiss the action because the federal

20

courts lack personal jurisdiction over the defendants with

*
The Honorable John G. Koeltl, of the United States District
Court for the Southern District of New York, sitting by
designation.
3

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1

respect to the claims in this action.

2

remaining issues.

3

______________

We do not reach the

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22

KENT A. YALOWITZ, Arnold & Porter, LLP, for PlaintiffsAppellees-Cross-Appellants.

23
24
25

John G. Koeltl, District Judge:

26

Liberation Organization (“PLO”) and the Palestinian Authority

27

(“PA”) (collectively, “defendants”)1 under the Anti-Terrorism Act

28

(“ATA”), 18 U.S.C. § 2333(a), for various terror attacks in

29

Israel that killed or wounded the plaintiffs-appellees-cross-

30

appellants (“plaintiffs”) or their family members.2

GASSAN A. BALOUL (Mitchell R. Berger, Pierre H. Bergeron, John
A. Burlingame, Alexandra E. Chopin, on the brief), Squire Patton
Boggs (US), LLP, for Defendants-Appellants-Cross-Appellees.
David A. Reiser, Zuckerman Spaeder, LLP, and Peter Raven-Hansen,
George Washington University Law School, on the brief for Amici
Curiae Former Federal Officials in Support of PlaintiffsAppellees-Cross-Appellants.
James P. Bonner, Stone, Bonner & Rocco, LLP, and Steven R.
Perles, Perles Law Firm, on the brief for Amici Curiae Arthur
Barry Sotloff, Shirley Goldie Pulwer, Lauren Sotloff, and the
Estate of Steven Joel Sotloff in Support of PlaintiffsAppellees-Cross-Appellants.
______________

In this case, eleven American families sued the Palestine

1

While other defendants, such as Yasser Arafat, were named as
defendants in the case, they did not appear, and the Judgment
was entered only against the PLO and the PA.
2
The plaintiffs are United States citizens, and the guardians,
family members, and personal representatives of the estates of
4

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1

The defendants repeatedly argued before the District Court

2

for the Southern District of New York that the court lacked

3

personal jurisdiction over them in light of their minimal

4

presence in, and the lack of any nexus between the facts

5

underlying the plaintiffs’ claims and the United States.

6

district court (Daniels, J.) concluded that it had general

7

personal jurisdiction over the defendants, even after the

8

Supreme Court narrowed the test for general jurisdiction in

9

Daimler AG v. Bauman, 134 S. Ct. 746 (2014).

The

See Sokolow v.

10

Palestine Liberation Org., No. 04-cv-397 (GBD), 2014 WL 6811395,

11

at *2 (S.D.N.Y. Dec. 1, 2014); see also Sokolow v. Palestine

12

Liberation Org., No. 04-cv-397 (GBD), 2011 WL 1345086, at *7

13

(S.D.N.Y. Mar. 30, 2011).

14

After a seven-week trial, a jury found that the defendants,

15

acting through their employees, perpetrated the attacks and that

16

the defendants knowingly provided material support to

17

organizations designated by the United States State Department

18

as foreign terrorist organizations.

19

plaintiffs damages of $218.5 million, an amount that was trebled

20

automatically pursuant to the ATA, 18 U.S.C. § 2333(a), bringing

21

the total award to $655.5 million.

The jury awarded the

United States citizens, who were killed or injured in the
terrorist attacks.
5

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On appeal, the defendants seek to overturn the jury’s

2

verdict by arguing that the United States Constitution precludes

3

the exercise of personal jurisdiction over them.

4

alternative, the defendants seek a new trial, arguing that the

5

district court abused its discretion by allowing certain

6

testimony by two expert witnesses.

7

asking this Court to reinstate non-federal claims that the

8

district court dismissed, and reinstate the claims of two

9

plaintiffs for which the district court found insufficient

10

In the

The plaintiffs cross-appeal,

evidence to submit to the jury.

11

We conclude that the district court erred when it concluded

12

it had personal jurisdiction over the defendants with respect to

13

the claims at issue in this action.

14

judgment of the district court and REMAND the case to the

15

district court with instructions to DISMISS the case for want of

16

personal jurisdiction.

17

defendants’ other arguments on appeal or the plaintiffs’ cross-

18

appeal, all of which are now moot.

19

I.

20

A.

21

Therefore, we VACATE the

Accordingly, we do not consider the

The PA was established by the 1993 Oslo Accords as the

22

interim and non-sovereign government of parts of the West Bank

23

and the Gaza Strip (collectively referred to here as

24

“Palestine”).

The PA is headquartered in the city of Ramallah
6

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in the West Bank, where the Palestinian President and the PA’s

2

ministers reside.

3

The PLO was founded in 1964.

At all relevant times, the

4

PLO was headquartered in Ramallah, the Gaza Strip, and Amman,

5

Jordan. Because the Oslo Accords limit the PA’s authority to

6

Palestine, the PLO conducts Palestine’s foreign affairs.

7

During the relevant time period for this action, the PLO

8

maintained over 75 embassies, missions, and delegations around

9

the world.

The PLO is registered with the United States

10

Government as a foreign agent.

11

offices in the United States: a mission to the United States in

12

Washington, D.C. and a mission to the United Nations in New York

13

City.

14

between 2002 and 2004, including two employees of the PA,

15

although not all at the same time.3

16

York missions engaged in diplomatic activities during the

17

relevant period.

18

substantial commercial presence in the United States.”

19

2011 WL 1345086, at *4.

20

purchased office supplies, paid for certain living expenses for

21

Hassan Abdel Rahman, the chief PLO and PA representative in the

The PLO has two diplomatic

The Washington, D.C. mission had fourteen employees

The Washington, D.C. and New

The Washington, D.C. mission “had a
Sokolow,

It used dozens of telephone numbers,

3

The district court concluded that “the weight of the evidence
indicates that the D.C. office simultaneously served as an
office for the PLO and the PA.” Sokolow, 2011 WL 1345086, at
*3.
7

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United States, and engaged in other transactions.

2

also retained a consulting and lobbying firm through a multi-

3

year, multi-million-dollar contract for services from about 1999

4

to 2004.

5

Palestinian cause in speeches and media appearances.

6

Id.

Id.

The PLO

The Washington, D.C. mission also promoted the
Id.

Courts have repeatedly held that neither the PA nor the PLO

7

is a “state” under United States or international law.

8

Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 47-48 (2d Cir.

9

1991) (holding the PLO, which had no defined territory or

See

10

permanent population and did not have capacity to enter into

11

genuine formal relations with other nations, was not a “state”

12

for purposes of the Foreign Sovereign Immunities Act); Estates

13

of Ungar v. Palestinian Auth., 315 F. Supp. 2d 164, 178-86

14

(D.R.I. 2004) (holding that neither the PA nor the PLO is a

15

state entitled to sovereign immunity under the Foreign Sovereign

16

Immunities Act because neither entity has a defined territory

17

with a permanent population controlled by a government that has

18

the capacity to enter into foreign relations); see also Knox v.

19

Palestine Liberation Org., 306 F. Supp. 2d 424, 431 (S.D.N.Y.

20

2004) (holding that neither the PLO nor the PA was a “state” for

21

purposes of the Foreign Sovereign Immunities Act).

22

While the United States does not recognize Palestine or the

23

PA as a sovereign government, see Sokolow v. Palestine

24

Liberation Org., 583 F. Supp. 2d 451, 457-58 (S.D.N.Y. 2008)
8

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(“Palestine, whose statehood is not recognized by the United

2

States, does not meet the definition of a ‘state,’ under United

3

States and international law . . . .”) (collecting cases), the

4

PA is the governing authority in Palestine and employs tens of

5

thousands of security personnel in Palestine.

6

PA’s Minister of Finance, the “PA funds conventional government

7

services, including developing infrastructure; public safety and

8

the judicial system; health care; public schools and education;

9

foreign affairs; economic development initiatives in

According to the

10

agriculture, energy, public works, and public housing; the

11

payment of more than 155,000 government employee salaries and

12

related pension funds; transportation; and, communications and

13

information technology services.”

14

B.

15

The plaintiffs sued the defendants in 2004, alleging

16

violations of the ATA for seven terror attacks committed during

17

a wave of violence known as “the al Aqsa Intifada,” by

18

nonparties who the plaintiffs alleged were affiliated with the

19

defendants.

20

attacks.4 At trial, the plaintiffs presented evidence of the

21

following attacks.

The jury found the plaintiffs liable for six of the

4

The district court found claims relating to an attack on
January 8, 2001 that wounded Oz Guetta speculative and did not
allow those claims to proceed to the jury. The plaintiffs argue
that this Court should reinstate the Guetta claims. Because we
9

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i.

2

On January 22, 2002, a PA police officer opened fire on a

January 22, 2002: Jaffa Road Shooting

3

pedestrian mall in Jerusalem.

4

people who were on Jaffa Street,” at a nearby bus stop and

5

aboard a bus that was at the stop, and at people in the stores

6

nearby “with the aim of causing the death of as many people as

7

possible.”

8

forty-five others before he was killed by police.

9

was carried out, according to trial evidence, by six members of

He shot “indiscriminately at the

The shooter killed two individuals and wounded
The attack

10

the PA police force who planned the shooting. Two of the

11

plaintiffs were injured.

12

ii.

13

On January 27, 2002, a PA intelligence informant named Wafa

January 27, 2002: Jaffa Road Bombing

14

Idris detonated a suicide bomb on Jaffa Road in Jerusalem,

15

killing herself and an Israeli man and seriously wounding four

16

of the plaintiffs, including two children.

17

at trial showed that the bombing was planned by a PA

18

intelligence officer who encouraged the assailant to conduct the

19

suicide bombing, even after the assailant had doubts about doing

20

so.

Evidence presented

21
22
conclude that there is no personal jurisdiction over the
defendants for the ATA claims, it is unnecessary to reach this
issue.
10

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iii. March 21, 2002: King George Street Bombing

2

On March 21, 2002, Mohammed Hashaika, a former PA police

3

officer, detonated a suicide bomb on King George Street in

4

Jerusalem.

5

because it was “full of people during the afternoon.”

6

set-off the explosion while in a crowd “with the aim of causing

7

the deaths of as many civilians as possible.”

8

were grievously wounded, including a seven-year-old American

9

boy.

10

Hashaika’s co-conspirators chose the location
Hashaika

Two plaintiffs

Evidence presented at trial showed that a PA intelligence

officer named Abdel Karim Aweis orchestrated the attack.

11

iv.

12

On June 19, 2002, a seventeen-year-old Palestinian man

June 19, 2002: French Hill Bombing

13

named Sa’id Awada detonated a suicide bomb at a bus stop in the

14

French Hill neighborhood of Jerusalem.

15

militant faction of the PLO’s Fatah party called the Al Aqsa

16

Martyr Brigades (“AAMB”), which the United States Department of

17

State had designated as a “foreign terrorist organization”

18

(“FTO”).

19

including an eighteen-year-old plaintiff who was stepping off a

20

bus when the bomb exploded.

Awada was a member of a

The bombing killed several people and wounded dozens,

21

v.

22

On July 31, 2002, military operatives of Hamas---a United

July 31, 2002: Hebrew University Bombing

23

States-designated FTO---detonated a bomb hidden in a black cloth

24

bag that was packed with hardware nuts in a café at Hebrew
11

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University in Jerusalem.

2

four United States citizens, whose estates bring suit here.

The explosion killed nine, including

3

vi.

4

On January 29, 2004, in an AAMB attack, a PA police officer

January 29, 2004: Bus No. 19 Bombing

5

named Ali Al-Ja’ara detonated a suicide vest on a crowded bus,

6

Bus No. 19 traveling from Malha Mall toward Paris Square in

7

central Jerusalem.

8

including one of the plaintiffs.

9

evidence submitted at trial, was to “caus[e] the deaths of a

10
11
12
13

The suicide bombing killed eleven people,
The bomber’s aim, according to

large number of individuals.”
C.
In 2004, the plaintiffs filed suit in the Southern District

14

of New York.

15

for lack of personal jurisdiction in July 2007.

16

court denied the motion, subject to renewal after jurisdictional

17

discovery.

18

district court denied the defendants’ renewed motion, holding

19

that the court had general personal jurisdiction over the

20

defendants.

21

The defendants first moved to dismiss the claims
The district

After the close of jurisdictional discovery, the

See Sokolow, 2011 WL 1345086, at *7.

The district court concluded, as an initial matter,

that

22

the service of process was properly effected by serving the

23

Chief Representative of the PLO and the PA, Hassan Abdel Rahman,

24

at his home in Virginia, pursuant to Federal Rule of Civil

25

Procedure 4(h)(1)(B) (providing that a foreign association “must
12

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be served[ ] . . . in a judicial district of the United States .

2

. . by delivering a copy of the summons and of the complaint to

3

an officer, a managing or general agent . . . .”); see also 18

4

U.S.C. § 2334(a) (providing for nationwide service of process

5

and venue under the ATA); Sokolow, 2011 WL 1345086, at *2.

6

The district court then engaged in a two-part analysis to

7

determine whether the exercise of personal jurisdiction

8

comported with the due process protections of the United States

9

Constitution.

First, it determined whether the defendants had

10

sufficient minimum contacts with the forum such that the

11

maintenance of the action did not offend traditional notions of

12

fair play and substantial justice.

13

*2 (citing Frontera Res. Azerbaijan Corp. v. State Oil Co. of

14

Azerbaijan Republic, 582 F.3d 393, 396 (2d Cir. 2009)).

15

Sokolow, 2011 WL 1345086, at

The district court distinguished between specific and

16

general personal jurisdiction---specific jurisdiction applies

17

where the defendants’ contacts are related to the litigation and

18

general jurisdiction applies where the defendants’ contacts are

19

so substantial that the defendants could be sued on all claims,

20

even those unrelated to contacts with the forum---and found that

21

the district court had general jurisdiction over the defendants.

22

Id. at *3.

23

“substantial commercial presence in the United States,” in

24

particular “a fully and continuously functional office in

The court considered what it deemed the defendants’

13

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1

Washington, D.C.,” bank accounts and commercial contracts, and

2

“a substantial promotional presence in the United States, with

3

the D.C. office having been permanently dedicated to promoting

4

the interests of the PLO and the PA.”

5

Id. at *4.

The district court concluded that activities involving the

6

defendants’ New York office were exempt from jurisdictional

7

analysis under an exception for United Nations’ related activity

8

articulated in Klinghoffer, 937 F.2d at 51-52 (UN participation

9

not properly considered basis for jurisdiction); see Sokolow,

10

2011 WL 1345086, at *5.

11

activities involving the Washington, D.C. mission were not

12

exempt from analysis and provided “a sufficient basis to

13

exercise general jurisdiction over the Defendants.”

14

(“The PLO and the PA were continuously and systematically

15

present in the United States by virtue of their extensive public

16

relations activities.”).

17

The district court held that the

Id. at *6

Next, the district court considered “‘whether the assertion

18

of personal jurisdiction comports with “traditional notions of

19

fair play and substantial justice”---that is, whether it is

20

reasonable under the circumstances of the particular case.’”

21

Id. (quoting Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84

22

F.3d 560, 568 (2d Cir. 1996)).

23

exercise of jurisdiction did not offend “traditional notions of

24

fair play and substantial justice,” pursuant to the standard

The court found that the

14

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articulated by International Shoe Co. v. Washington, 326 U.S.

2

310, 316 (1945), and its progeny.

3

at *6-7.

4

inherent interest of the United States and Plaintiffs in

5

litigating ATA claims in the United States,” and that the

6

defendants “failed to identify an alternative forum where

7

Plaintiffs’ claims could be brought, and where the foreign court

8

could grant a substantially similar remedy.”

See Sokolow, 2011 WL 1345086,

The district court concluded that “[t]here is a strong

Id. at *7.

9

In January 2014, after the Supreme Court had significantly

10

narrowed the general personal jurisdiction test in Daimler, 134

11

S. Ct. 746, the defendants moved for reconsideration of the

12

denial of their motion to dismiss.

13

On April 11, 2014, the district court denied the

14

defendants’ motions for reconsideration, ruling that Daimler did

15

not compel dismissal.

16

defendants’ motions to certify the jurisdictional issue for an

17

interlocutory appeal.

18

defendants renewed their jurisdictional argument in their

19

motions for summary judgment, arguing that this Court’s decision

20

in Gucci America, Inc. v. Weixing Li, 768 F.3d 122 (2d Cir.

21

2014), altered the controlling precedent in this Circuit,

22

requiring dismissal of the case.

23

at *1.

24

personal jurisdiction over the defendants, describing the action

The district court also denied the

See Sokolow, 2014 WL 6811395, at *1.

The

See Sokolow, 2014 WL 6811395,

The district court concluded that it still had general

15

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as presenting “‘an exceptional case,’” id. at *2, of the kind

2

discussed in Daimler, 134 S. Ct. at 761 n.19, and Gucci, 768

3

F.3d at 135.

4

The district court held that “[u]nder both Daimler and

5

Gucci, the PA and PLO’s continuous and systematic business and

6

commercial contacts within the United States are sufficient to

7

support the exercise of general jurisdiction,” and that the

8

record before the court was “insufficient to conclude that

9

either defendant is ‘at home’ in a particular jurisdiction other

10
11

than the United States.” Sokolow, 2014 WL 6811395, at *2.
Following the summary judgment ruling, the defendants

12

sought mandamus on the personal jurisdiction issue.

13

denied the defendants’ petition.

14

Org., Palestinian Authority, No. 14-4449 (2d Cir. Jan. 6, 2015)

15

(summary order).

16

This Court

See In re Palestine Liberation

The case proceeded to trial in January 2015.

During the

17

trial, the defendants introduced evidence about the PA’s and

18

PLO’s home in Palestine.

19

terrorist attacks occurred in the vicinity of Jerusalem.

20

plaintiffs did not allege or submit evidence that the plaintiffs

21

were targeted in any of the six attacks at issue because of

22

their United States citizenship or that the defendants engaged

23

in conduct in the United States related to the attacks.

The trial evidence showed that the

16

The

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1

At the conclusion of plaintiffs’ case in chief, the

2

defendants moved for judgment as a matter of law under Federal

3

Rule of Civil Procedure 50(a), arguing, among other grounds,

4

that the district court lacked personal jurisdiction over the

5

defendants.

6

renewed that motion at the close of all the evidence and again

7

asserted that the court lacked personal jurisdiction.

8
9

The Court denied the motion.

The defendants

During and immediately after trial, the District Court for
the District of Columbia issued three separate decisions

10

dismissing similar suits for lack of personal jurisdiction by

11

similar plaintiffs in cases against the PA and the PLO.

12

Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d 237, 245-

13

46 (D.D.C. 2015), appeal docketed, No. 15-7034 (D.C. Cir. Apr.

14

8, 2015); Livnat v. Palestinian Auth., 82 F. Supp. 3d 19, 30

15

(D.D.C. 2015), appeal docketed, No. 15-7024 (D.C. Cir. Mar. 18,

16

2015); Safra v. Palestinian Auth., 82 F. Supp. 3d 37, 47-48

17

(D.D.C. 2015), appeal docketed, No. 15-7025 (D.C. Cir. Mar. 18,

18

2015).

See

19

In light of these cases, on May 1, 2015, the defendants

20

renewed their motion to dismiss for lack of both general and

21

specific personal jurisdiction.

22

the alternative, for judgment as a matter of law or for a new

23

trial pursuant to Federal Rules of Civil Procedure 50(b) and 59.

24

The district court reviewed the decisions by the District Court

The defendants also moved, in

17

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1

for the District of Columbia, but, for the reasons articulated

2

in its 2014 decision and at oral argument, concluded that the

3

district court had general personal jurisdiction over the

4

defendants.

5

whether it had specific personal jurisdiction over the

6

defendants.

7

The district court did not rule explicitly on

The jury found the defendants liable for all six attacks

8

and awarded the plaintiffs damages of $218.5 million, an amount

9

that was trebled automatically pursuant to the ATA, 18 U.S.C.

10

§ 2333(a), bringing the total award to $655.5 million.

11

The parties engaged in post-trial motion practice not

12

relevant here, the defendants timely appealed, and the

13

plaintiffs cross-appealed.

14

II.

15

A.

16

“We review a district court’s assertion of personal

17

jurisdiction de novo.”

18

451 F.3d 89, 94 (2d Cir. 2006).5

Dynegy Midstream Servs. v. Trammochem,

5

The standard of review in this case is complicated because the
issue of personal jurisdiction was raised initially on a motion
to dismiss, both before and after discovery, and as a basis for
Rule 50 motions at the conclusion of the plaintiffs’ case and
after all the evidence was presented. This Court typically
reviews factual findings in a district court’s decision on
personal jurisdiction for clear error and its legal conclusions
de novo. See Frontera Res., 582 F.3d at 395. In this case, the
parties agree that this Court should review de novo whether the
district court’s exercise of personal jurisdiction was
18

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1

To exercise personal jurisdiction lawfully, three

2

requirements must be met.

3

process upon the defendant must have been procedurally proper.

4

Second, there must be a statutory basis for personal

5

jurisdiction that renders such service of process

6

effective. . . . Third, the exercise of personal jurisdiction

7

must comport with constitutional due process principles.”

8

ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59-60

9

(2d Cir. 2012) (footnotes and internal citations omitted),

“First, the plaintiff’s service of

Licci

10

certified question accepted sub nom. Licci v. Lebanese Canadian

11

Bank, 967 N.E.2d 697 (N.Y. 2012), and certified question

12

answered sub nom. Licci v. Lebanese Canadian Bank, 984 N.E.2d

13

893 (N.Y. 2012).

14

Constitutional due process assures that an individual will

15

only be subjected to the jurisdiction of a court where the

16

maintenance of a lawsuit does not offend “traditional notions of

17

fair play and substantial justice.”

Int’l Shoe, 326 U.S. at 316

18

(internal quotation marks omitted).

Personal jurisdiction is “a

19

matter of individual liberty” because due process protects the

20

individual’s right to be subject only to lawful power.

21

McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884 (2011)

J.

constitutional. See Pls.’ Br. at 27; Defs.’ Br. at 23. In any
event, the issues relating to general jurisdiction are
essentially legal questions that should be reviewed de novo.
Assuming without deciding the question, we review the district
court’s assertion of personal jurisdiction de novo.
19

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1

(plurality opinion) (quoting Ins. Corp. of Ir. v. Compagnie des

2

Bauxites de Guinee, 456 U.S. 694, 702 (1982)).

3

The ATA provides that process “may be served in any

4

district where the defendant resides, is found, or has an agent

5

. . . .”

6

plaintiffs properly served the defendants because they served

7

the complaint, pursuant to Federal Rule of Civil Procedure

8

4(h)(1)(B) (providing that service on an unincorporated

9

association is proper if the complaint is served on a “general

10

agent” of the entity), on Hassan Abdel Rahman, who “based upon

11

the overwhelming competent evidence produced by Plaintiffs, was

12

the Chief Representative of the PLO and the PA in the United

13

States at the time of service.” Sokolow, 2011 WL 1345086, at *2.6

14

18 U.S.C § 2334(a).

The district court found that the

The defendants have not disputed that service was proper

15

and that there was a statutory basis pursuant to the ATA for

16

that service of process.

17

the Court is whether the third jurisdictional requirement is

18

met---whether jurisdiction over the defendants may be exercised

19

consistent with the Constitution.

20

B.

21
22

Therefore, the only question before

Before we reach the analysis of constitutional due process,
the plaintiffs raise three threshold issues: First, whether the
6

The district court found that the defendants are
“unincorporated associations.” See Sokolow v. Palestine
Liberation Org., 60 F. Supp. 3d 509, 523-24 (S.D.N.Y. 2014).
20

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1

defendants waived their objections to personal jurisdiction;

2

second, whether the defendants have due process rights at all;

3

and third, whether the due process clause of the Fifth Amendment

4

to the Constitution and not the Fourteenth Amendment controls

5

the personal jurisdiction analysis in this case.

6

First, the plaintiffs argue that the defendants waived

7

their argument that the district court lacked personal

8

jurisdiction over them. The plaintiffs contend that the

9

defendants could have argued that they were not subject to

10

general jurisdiction under the “at home” test before Daimler was

11

decided because the “at home” general jurisdiction test existed

12

after Goodyear Dunlop Tire Operations, S.A. v. Brown, 564 U.S.

13

915 (2011). This argument is unavailing because this Court in

14

Gucci looked to the test in Daimler as the appropriate test for

15

general jurisdiction over a corporate entity. See Gucci, 768

16

F.3d at 135-36.

17

objection to personal jurisdiction because they repeatedly and

18

consistently objected to personal jurisdiction and invoked

19

Daimler after this Court’s decision in Gucci.

20

district court explicitly noted that the “Defendants’ motions

21

asserting lack of personal jurisdiction are not denied based on

22

a theory of waiver.”

23

(emphasis added).

The defendants did not waive or forfeit their

Furthermore, the

Sokolow, 2014 WL 6811395, at *2 n.2

21

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1

Second, the plaintiffs argue that the defendants have no

2

due process rights because the defendants are foreign

3

governments and share many of the attributes typically

4

associated with a sovereign government.

5

states do not have due process rights but receive the protection

6

of the Foreign Sovereign Immunities Act.

7

F.3d at 396-400.

8

defendants, lack due process rights, because they do not view

9

themselves as part of a sovereign and are treated as a foreign

Foreign sovereign

See Frontera Res., 582

The plaintiffs argue that entities, like the

10

government in other contexts. The plaintiffs do not cite any

11

cases indicating that a non-sovereign entity with governmental

12

attributes lacks due process rights. All the cases cited by the

13

plaintiffs stand for the proposition that sovereign governments

14

lack due process rights, and these cases have not been extended

15

beyond the scope of entities that are separate sovereigns,

16

recognized by the United States government as sovereigns, and

17

therefore enjoy foreign sovereign immunity.

18

While sovereign states are not entitled to due process

19

protection, see id. at 399, neither the PLO nor the PA is

20

recognized by the United States as a sovereign state, and the

21

executive’s determination of such a matter is conclusive.

22

Zivotofsky v. Kerry, 135 S. Ct. 2076, 2088 (2015); see also

23

Ungar, 315 F. Supp. 2d at 177 (“The PA and PLO’s argument must

24

fail because Palestine does not satisfy the four criteria for
22

See

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1

statehood and is not a State under prevailing international

2

legal standards.”); Knox, 306 F. Supp. 2d at 431 (“[T]here does

3

not exist a state of Palestine which meets the legal criteria

4

for statehood. . . .”); accord Klinghoffer, 937 F.2d at 47 (“It

5

is quite clear that the PLO meets none of those requirements

6

[for a state].”). Because neither defendant is a state, the

7

defendants have due process rights. See O’Neill v. Asat Trust

8

Reg. (In re Terrorist Attacks on Sept. 11, 2001), 714 F.3d 659,

9

681-82 (2d Cir. 2013) (“O’Neill”) (dismissing for lack of

10

personal jurisdiction claims against charities, financial

11

institutions, and other individuals who are alleged to have

12

provided support to Osama Bin Laden and al Qaeda); Livnat, 82 F.

13

Supp. 3d at 26 (due process clause applies to the PA (collecting

14

cases)).

15

Third, the plaintiffs and amici curiae Former Federal

16

Officials argue that the restrictive Fourteenth Amendment due

17

process standards cannot be imported into the Fifth Amendment

18

and that the due process clause of the Fifth Amendment to the

19

Constitution,7 and not the Fourteenth Amendment,8 applies to the
7

The Fifth Amendment states in relevant part: “. . . nor shall
any person . . . be deprived of life, liberty, or property,
without due process of law . . . .” U.S. CONST. amend. V.
8

The Fourteenth Amendment states in relevant part: “. . . nor
shall any State deprive any person of life, liberty, or
property, without due process of law . . . .” U.S. CONST. amend.
XIV., § 1.
23

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1

ATA and controls the analysis in this case. The argument is

2

particularly important in this case because the defendants rely

3

on the standard for personal jurisdiction set out in Daimler and

4

the Daimler Court explained that it was interpreting the due

5

process clause of the Fourteenth Amendment. Daimler, 134 S. Ct.

6

at 751.

7

The plaintiffs and amici argue that the Fourteenth

8

Amendment due process clause restricts state power but the Fifth

9

Amendment should be applied to the exercise of federal power.

10

Their argument is that the Fourteenth Amendment imposes stricter

11

limits on the personal jurisdiction that courts can exercise

12

because that Amendment, grounded in concepts of federalism, was

13

intended to referee jurisdictional conflicts among the sovereign

14

States.

15

restrictions because it contemplates disputes with foreign

16

nations, which, unlike States, do not follow reciprocal rules

17

and are not subject to our constitutional system.

18

McIntyre Mach., 564 U.S. at 884 (plurality opinion) (“Because

19

the United States is a distinct sovereign, a defendant may in

20

principle be subject to the jurisdiction of the courts of the

21

United States but not of any particular State. This is

22

consistent with the premises and unique genius of our

23

Constitution.”).

24

the Fourteenth and Fifth Amendments, the plaintiffs and amici

The Fifth Amendment, by contrast, imposes more lenient

See, e.g., J.

To conflate the due process requirements of

24

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1

argue, would impose a unilateral constraint on United States

2

courts, even when the political branches conclude that personal

3

jurisdiction over a defendant for extraterritorial conduct is in

4

the national interest.9

5

This Court’s precedents clearly establish the congruence of

6

due process analysis under both the Fourteenth and Fifth

7

Amendments.

8

analysis [for purposes of the court’s in personam jurisdiction]

9

is basically the same under both the Fifth and Fourteenth

This Court has explained: “[T]he due process

10

Amendments.

11

Amendment the court can consider the defendant's contacts

12

throughout the United States, while under the Fourteenth

13

Amendment only the contacts with the forum state may be

14

considered.”

15

1998).

16
17

The principal difference is that under the Fifth

Chew v. Dietrich, 143 F.3d 24, 28 n.4 (2d Cir.

Indeed, this Court has already applied Fourteenth Amendment
principles to Fifth Amendment civil terrorism cases.

9

For

The plaintiffs also point to the brief filed by the United
States Solicitor General in Daimler to support their argument
that the due process standards for the Fifth and Fourteenth
Amendments vary. However, the United States never advocated
that the Fourteenth Amendment standard would be inapplicable to
Fifth Amendment cases and, instead, urged the Court not to reach
the issue. See Brief for the United States as Amicus Curaie
Supporting Petitioner, DaimlerChrysler AG v. Bauman, 134 S. Ct.
746 (2014) (No. 11-965), 2013 WL 3377321, at *3 n.1 (“This Court
has consistently reserved the question whether its Fourteenth
Amendment personal jurisdiction precedents would apply in a case
governed by the Fifth Amendment, and it should do so here.”).
25

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1

example, in O’Neill, 714 F.3d at 673-74, this Court applied

2

Fourteenth Amendment due process cases to terrorism claims

3

brought pursuant to the ATA in federal court. See In re

4

Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 93 (2d Cir.

5

2008), abrogated on other grounds by Samantar v. Yousuf, 560

6

U.S. 305 (2010); see also Tex. Trading & Milling Corp. v. Fed.

7

Republic of Nigeria, 647 F.2d 300, 315 n.37 (2d Cir. 1981)

8

(declining to apply different due-process standards in a case

9

governed by the Fifth Amendment compared to one governed by the

10

Fourteenth Amendment), overruled on other grounds by Frontera

11

Res., 582 F.3d at 400; GSS Grp. Ltd v. Nat’l Port Auth., 680

12

F.3d 805, 816-17 (D.C. Cir. 2012) (applying Fourteenth Amendment

13

case law when considering minimum contacts under the Fifth

14

Amendment).

15

Amici Federal Officials concede that our precedents settle

16

the issue, but they argue those cases were wrongly decided and

17

urge us not to follow them. We decline the invitation to upend

18

settled law.10

19
20

Accordingly, we conclude that the minimum contacts and
fairness analysis is the same under the Fifth Amendment and the

10

Amici argue for “universal”---or limitless---personal
jurisdiction in terrorism cases. This Court has already rejected
that suggestion. See United States v. Yousef, 327 F.3d 56, 10708 (2d Cir. 2003) (per curiam) (“[T]errorism---unlike piracy,
war crimes, and crimes against humanity---does not provide a
basis for universal jurisdiction.”).
26

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1

Fourteenth Amendment in civil cases and proceed to analyze the

2

jurisdictional question.

3
4

III.
Pursuant to the due process clauses of the Fifth and

5

Fourteenth Amendments, there are two parts to the due process

6

test for personal jurisdiction as established by International

7

Shoe, 326 U.S. 310, and its progeny: the “minimum contacts”

8

inquiry and the “reasonableness” inquiry.

9

Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d

See Bank Brussels

10

Cir. 2002) (Sotomayor, J.).

11

requires that the court determine whether a defendant has

12

sufficient minimum contacts with the forum to justify the

13

court’s exercise of personal jurisdiction over the defendant.

14

See Daimler, 134 S. Ct. at 754; Calder v. Jones, 465 U.S. 783,

15

788 (1984); Int’l Shoe, 326 U.S. at 316; Metro. Life Ins., 84

16

F.3d at 567-68.

17

to determine whether the assertion of personal jurisdiction over

18

the defendant comports with “‘traditional notions of fair play

19

and substantial justice’” under the circumstances of the

20

particular case.

21

564 U.S. at 923); Burger King Corp. v. Rudzewicz, 471 U.S. 462,

22

476-78 (1985).

23
24

The minimum contacts inquiry

The reasonableness inquiry requires the court

Daimler, 134 S. Ct. at 754 (quoting Goodyear,

International Shoe distinguished between two exercises of
personal jurisdiction: general jurisdiction and specific
27

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1

jurisdiction.

2

issue of general jurisdiction. We conclude that general

3

jurisdiction is absent; the question remains whether the court

4

may nonetheless assert its jurisdiction under the doctrine of

5

specific jurisdiction.

6

The district court in this case ruled only on the

A court may assert general personal jurisdiction over a

7

foreign defendant to hear any and all claims against that

8

defendant only when the defendant’s affiliations with the State

9

in which suit is brought “are so constant and pervasive ‘as to

10

render [it] essentially at home in the forum State.’”

11

134 S. Ct. at 751 (quoting Goodyear, 564 U.S. at 919); see also

12

Goodyear, 564 U.S. at 924.

13

jurisdiction has become the centerpiece of modern jurisdiction

14

theory, while general jurisdiction [has played] a reduced

15

rule.’”

Daimler, 134 S. Ct. at 755 (quoting Goodyear, 564 U.S.

16

at 925).

Accordingly, there are “few” Supreme Court opinions

17

over the past half-century that deal with general jurisdiction.

18

Id.

Daimler,

“Since International Shoe, ‘specific

19

“Specific jurisdiction, on the other hand, depends on an

20

affiliation between the forum and the underlying controversy,

21

principally, activity or an occurrence that takes place in the

22

forum State and is therefore subject to the State’s regulation.”

23

Goodyear, 564 U.S. at 919 (alterations, internal quotation

24

marks, and citation omitted).

The exercise of specific
28

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1

jurisdiction depends on in-state activity that “gave rise to the

2

episode-in-suit.”

3

317) (emphasis in original).

4

“commission of certain ‘single or occasional acts’ in a State

5

may be sufficient to render a corporation answerable in that

6

State with respect to those acts, though not with respect to

7

matters unrelated to the forum connections.”

8

Shoe, 326 U.S. at 318).

Id. at 923 (quoting Int’l Shoe, 326 U.S. at
In certain circumstances, the

9

Id. (quoting Int’l

A.

10

The district court concluded that it had general

11

jurisdiction over the defendants; however, that conclusion

12

relies on a misreading of the Supreme Court’s decision in

13

Daimler.

14

In Daimler, the plaintiffs asserted claims under the Alien

15

Tort Statute and the Torture Victim Protection Act of 1991, see

16

28 U.S.C. §§ 1350 & note, as well as other claims, arising from

17

alleged torture that was committed in Argentina by the

18

Argentinian government with the collaboration of an Argentina-

19

based subsidiary of the German corporate defendant.

20

Daimler, 134 S. Ct. at 750-52.

21

argument that the California federal court could exercise

22

general personal jurisdiction over the German corporation based

23

on the continuous activities in California of the German

24

corporation’s indirect United States subsidiary.

See

The Supreme Court rejected the

29

See id. at

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1

751.

2

was not incorporated in California and did not have its

3

principal place of business in California, could not be

4

considered to be “at home in California” and subject to general

5

jurisdiction there.

6

Daimler concluded that the German corporate parent, which

Id. at 762.

Daimler analogized its “at-home test” to that of an

7

individual’s domicile. “[F]or a corporation, it is an equivalent

8

place, one in which the corporation is fairly regarded as at

9

home.

With respect to a corporation, the place of incorporation

10

and principal place of business are paradigm bases for general

11

jurisdiction.”

12

marks, and citations omitted).

13

Id. at 760 (alterations, internal quotation

As an initial matter, while Daimler involved corporations,

14

and neither the PA nor the PLO is a corporation---the PA is a

15

non-sovereign government and the PLO is a foreign agent, and

16

both are unincorporated associations, see Part I.A---Daimler’s

17

reasoning was based on an analogy to general jurisdiction over

18

individuals, and there is no reason to invent a different test

19

for general personal jurisdiction depending on whether the

20

defendant is an individual, a corporation, or another entity.

21

Indeed, in Gucci this Court relied on Daimler when it found

22

there was no general personal jurisdiction over the Bank of

23

China, a non-party bank that was incorporated and headquartered

24

in China and owned by the Chinese government.
30

The Court

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1

described the Daimler test as applicable to “entities.”

2

“General, all-purpose jurisdiction permits a court to hear ‘any

3

and all claims’ against an entity.”

4

(emphasis added); see id. at 134 n.13 (“The essence of general

5

personal jurisdiction is the ability to entertain ‘any and all

6

claims’ against an entity based solely on the entity's

7

activities in the forum, rather than on the particulars of the

8

case before the court.”). Consequently, we consider the PLO and

9

the PA entities subject to the Daimler test for general

Gucci, 768 F.3d at 134

10

jurisdiction. See Klieman, 82 F. Supp. 3d at 245-46; Livnat, 82

11

F. Supp. 3d at 28; Safra, 82 F. Supp. 3d at 46.

12

Pursuant to Daimler, the question becomes, where are the PA

13

and PLO “‘fairly regarded as at home’”?

14

(quoting Goodyear, 564 U.S. at 924).

15

shows that the defendants are “at home” in Palestine, where they

16

govern.

17

and PLO.

18

Gaza, and it has no independently operated offices anywhere

19

else.

20

president, the Parliament, and the Palestinian security services

21

reside in Palestine.

134 S. Ct. at 761

The overwhelming evidence

Palestine is the central seat of government for the PA
The PA’s authority is limited to the West Bank and

All PA governmental ministries, the Palestinian

22

As the District Court for the District of Columbia

23

observed, “[i]t is common sense that the single ascertainable

24

place where a government such a[s] the Palestinian Authority
31

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1

should be amenable to suit for all purposes is the place where

2

it governs.

3

States.”

4

Supp. 3d at 48.

5

which during the relevant period maintained its headquarters in

6

Palestine and Amman, Jordan.

7

(“Defendants’ alleged contacts . . . do not suffice to render

8

the PA and the PLO ‘essentially at home’ in the United States.”)

9

Here, that place is the West Bank, not the United

Livnat, 82 F. Supp. 3d at 30; see also Safra, 82 F.
The same analysis applies equally to the PLO,

See Klieman, 82 F. Supp. 3d at 245

The activities of the defendants’ mission in Washington,

10

D.C.---which the district court concluded simultaneously served

11

as an office for the PLO and the PA, see Sokolow, 2011 WL

12

1345086, at *3---were limited to maintaining an office in

13

Washington, promoting the Palestinian cause in speeches and

14

media appearances, and retaining a lobbying firm.

15

*4.

16

See id. at

These contacts with the United States do not render the PA

17

and the PLO “essentially at home” in the United States.

18

Daimler, 134 S. Ct. at 754.

19

district court found supported general jurisdiction are like

20

those rejected as insufficient by the Supreme Court in Daimler.

21

In Daimler, the Supreme Court held as “unacceptably grasping” a

22

formulation that allowed for “the exercise of general

23

jurisdiction in every State in which a corporation ‘engages in a

24

substantial, continuous, and systematic course of business.’”

See

The commercial contacts that the

32

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1

134 S. Ct. at 761.

2

California could not exercise general personal jurisdiction over

3

the German parent company even though that company’s indirect

4

subsidiary was the largest supplier of luxury vehicles to the

5

California market.

6

Daimler’s contacts with California “slim” and concluded that

7

they would “hardly render it at home” in California.

8

760.

The Supreme Court found that a court in

Id. at 752.

The Supreme Court deemed

Id. at

9

Daimler’s contacts with California were substantially

10

greater than the defendants’ contacts with the United States in

11

this case.

12

that Daimler should be subjected to general personal

13

jurisdiction in California for events that occurred anywhere in

14

the world.

15

many jurisdictions, not just the jurisdictions where the

16

entities were centered, for worldwide events unrelated to the

17

jurisdiction where suit was brought.

18

such a conception of general personal jurisdiction to be

19

incompatible with due process.

20
21
22
23
24
25
26
27
28

But still the Supreme Court rejected the proposition

Such a regime would allow entities to be sued in

The Supreme Court found

The Supreme Court explained:

General jurisdiction . . . calls for an appraisal of a
corporation’s activities in their entirety, nationwide
and worldwide.
A corporation that operates in many
places can scarcely be deemed at home in all of them.
Otherwise, “at home” would be synonymous with “doing
business” tests framed before specific jurisdiction
evolved
in
the
United
States.
Nothing
in
International Shoe and its progeny suggests that “a
particular quantum of local activity” should give a
33

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1
2
3
4
5

Id. at 762 n.20 (internal citations omitted).

6

commercial contacts occasioned by the defendants’ Washington,

7

D.C. mission, there is no doubt that the “far larger quantum” of

8

the defendants’ activities took place in Palestine.

State authority over a “far larger quantum of . . .
activity” having no connection to any in-state
activity.
Regardless of the

9

The district court held that the record before it was

10

“insufficient to conclude that either defendant is ‘at home’ in

11

a particular jurisdiction other than the United States.”

12

Sokolow, 2014 WL 6811395, at *2.

13

supported by the record.

14

defendants are “at home” in Palestine, where these entities are

15

headquartered and from where they are directed.

16

134 S. Ct. at 762 n.20.11

17

That conclusion is not

The evidence demonstrates that the

See Daimler,

The district court also erred in placing the burden on the

18

defendants to prove that there exists “an alternative forum

19

where Plaintiffs’ claims could be brought, and where the foreign

20

court could grant a substantially similar remedy.”

21

2011 WL 1345086, at *7.

22

fact, it is the plaintiff’s burden to establish that the court

23

has personal jurisdiction over the defendants.

Sokolow,

Daimler imposes no such burden.

11

In

See Koehler v.

It appears that the district court, when considering where the
defendants were “at home,” limited its inquiry to areas that are
within a sovereign nation. We see no basis in precedent for
this limitation.
34

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1

Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996) (“[T]he

2

plaintiff bears the ultimate burden of establishing jurisdiction

3

over the defendant by a preponderance of evidence . . . .”);

4

Metro. Life Ins., 84 F.3d at 566-67; see also Klieman, 82 F.

5

Supp. 3d at 243; Livnat, 82 F. Supp. 3d at 30; Safra, 82 F.

6

Supp. 3d at 49.12

7

Finally, the district court did not dispute the defendants’

8

ties to Palestine but concluded that the court had general

9

jurisdiction pursuant to an “exception” that the Supreme Court

10

alluded to in a footnote in Daimler.

11

Court did not “foreclose the possibility that in an exceptional

12

case, a corporation’s operations in a forum other than its

13

formal place of incorporation or principal place of business may

14

be so substantial and of such a nature as to render the

15

corporation at home in that State.” 134 S. Ct. at 761 n.19

16

(citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437,

17

447-48 (1952)).

12

In Daimler, the Supreme

The district court’s focus on the importance of identifying an
alternative forum may have been borrowed inappositely from forum
non conveniens jurisprudence, pursuant to which a court
considers (1) the degree of deference to be afforded to the
plaintiff’s choice of forum; (2) whether there is an adequate
alternative forum for adjudicating the dispute; and (3) whether
the balance of private and public interests tips in favor of
adjudication in one forum or the other. See Norex Petroleum
Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005).
However, that is not the test for general jurisdiction under
Daimler, 134 S. Ct. at 762 n.20.
35

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1

Daimler analyzed the 1952 Perkins case, “‘the textbook case

2

of general jurisdiction appropriately exercised over a foreign

3

corporation that has not consented to suit in the forum.’”

4

at 755-56 (quoting Goodyear, 564 U.S. at 928).

5

Perkins was a company, Benguet Consolidated Mining Company

6

(“Benguet”), which was incorporated under the laws of the

7

Philippines, where it operated gold and silver mines.

8

World War II, the Japanese occupied the Philippines, and

9

Benguet’s president relocated to Ohio, where he kept an office,

Id.

The defendant in

During

10

maintained the company’s files, and oversaw the company’s

11

activities. Perkins, 342 U.S. at 447-48.

12

nonresident of Ohio, sued Benguet in a state court in Ohio on a

13

claim that neither arose in Ohio nor related to the

14

corporation’s activities in Ohio, but the Supreme Court

15

nevertheless held that the Ohio courts could constitutionally

16

exercise general personal jurisdiction over the defendant.

17

at 438, 440.

18

the corporation’s principal, if temporary, place of business.’”

19

Daimler, 134 S. Ct. at 756 (quoting Keeton v. Hustler Magazine,

20

Inc., 465 U.S. 770, 780 n.11 (1984)).

21

The plaintiff, a

Id.

As the Supreme Court later observed: “‘Ohio was

Such exceptional circumstances did not exist in Daimler,

22

id. at 761 n.19, or in Gucci.

23

while a nonparty bank had branch offices in the forum, it was

24

not an “exceptional case” in which to exercise general personal

In Gucci, this Court held that,

36

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1

jurisdiction where the bank was incorporated and headquartered

2

elsewhere, and its contacts were not “‘so continuous and

3

systematic as to render [it] essentially at home in the forum.’”

4

768 F.3d at 135 (quoting Daimler, 134 S. Ct. at 761 n.19).

5

The defendants’ activities in this case, as with those of

6

the defendants in Daimler and Gucci, “plainly do not approach”

7

the required level of contact to qualify as “exceptional.”

8

Daimler, 134 S. Ct. at 761 & n.19.

9

transported their principle “home” to the United States, even

The PLO and PA have not

10

temporarily, as the defendant had in Perkins.

11

Lockheed Martin Corp., 814 F.3d 619, 628-30 (2d Cir. 2016).

12

See Brown v.

Accordingly, pursuant to the Supreme Court’s recent

13

decision in Daimler, the district court could not properly

14

exercise general personal jurisdiction over the defendants.

15

B.

16

The district court did not rule explicitly on whether it

17

had specific personal jurisdiction over the defendants, but the

18

question was sufficiently briefed and argued to allow us to

19

reach that issue.

20

“The inquiry whether a forum State may assert specific

21

jurisdiction over a nonresident defendant focuses on the

22

relationship among the defendant, the forum, and the litigation.

23

For a State to exercise jurisdiction consistent with due

24

process, the defendant’s suit-related conduct must create a
37

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1

substantial connection with the forum State.”

2

134 S. Ct. 1115, 1121 (2014) (internal quotation marks and

3

citations omitted).

4

the forum “must arise out of contacts that the ‘defendant

5

himself’ creates with the forum.”

6

King, 471 U.S. at 475) (emphasis in original). The “‘minimum

7

contacts’ analysis looks to the defendant’s contacts with the

8

forum State itself, not the defendant’s contacts with persons

9

who reside there.”

10
11

Walden v. Fiore,

The relationship between the defendant and

Id.

Id. at 1122 (citing Burger

And the “same principles apply when

intentional torts are involved.”

Id. at 1123.

The question in this case is whether the defendants’ suit-

12

related conduct---their role in the six terror attacks at issue-

13

--creates a substantial connection with the forum State pursuant

14

to the ATA. The relevant “suit-related conduct” by the

15

defendants was the conduct that could have subjected them to

16

liability under the ATA. On its face, the conduct in this case

17

did not involve the defendants’ conduct in the United States in

18

violation of the ATA.

19

States citizens, the terrorist attacks occurred in and around

20

Jerusalem, and the defendants’ activities in violation of the

21

ATA occurred outside the United States.

While the plaintiff-victims were United

22

The ATA provides:

23
24
25

Any national of the United States injured in his or
her person, property, or business by reason of an act
of international terrorism, or his or her estate,
38

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1
2
3
4
5
6
7

survivors,
or
heirs,
may
sue
therefor
in
any
appropriate district court of the United States and
shall recover threefold the damages he or she sustains
and the cost of the suit, including attorney’s fees.
18 U.S.C. § 2333(a)
To prevail under the ATA, a plaintiff must prove “three

8

formal elements: unlawful action, the requisite mental state,

9

and causation.”

Sokolow, 60 F. Supp. 3d at 514 (quoting Gill v.

10

Arab Bank, PLC, 893 F. Supp. 2d 542, 553 (E.D.N.Y. 2012))

11

(emphasis in original).

12

To establish an “unlawful action,” the plaintiffs must show

13

that their injuries resulted from an act of “international

14

terrorism.”

15

activities that, among other things, “involve violent acts or

16

acts dangerous to human life that are a violation of the

17

criminal laws of the United States or of any State, or that

18

would be a criminal violation if committed within the

19

jurisdiction of the United States or of any State.” 18 U.S.C.

20

§ 2331(1)(A).

21

intimidate or coerce a civilian population; (ii) to influence

22

the policy of a government by intimidation or coercion; or

23

(iii) to affect the conduct of a government by mass destruction,

24

assassination, or kidnapping.”

25
26

The ATA defines “international terrorism” as

The acts must also appear to be intended “(i) to

18 U.S.C. § 2331(1)(B)(i)-(iii).

The plaintiffs asserted that the defendants were
responsible on a respondeat superior theory for a variety of

39

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1

predicate acts, including murder and attempted murder, 18 U.S.C.

2

§§ 1111, 2332, use of a destructive device on a mass

3

transportation vehicle, 18 U.S.C. § 1992, detonating an

4

explosive device on a public transportation system, 18 U.S.C.

5

§ 2332f, and conspiracy to commit those acts, 18 U.S.C. § 371.

6

See Sokolow, 60 F. Supp. 3d at 515.

7

defendants directly violated federal and state antiterrorism

8

laws, including 18 U.S.C. § 2339B, by providing material support

9

to FTO-designated groups (the AAMB and Hamas) and by harboring

10

persons whom the defendants knew or had reasonable grounds to

11

believe committed or were about to commit an offense relating to

12

terrorism, see 18 U.S.C. § 2339 et seq.; see also Sokolow, 60 F.

13

Supp. 3d at 520-21, 523.

14

They also asserted that the

The ATA further limits international terrorism to

15

activities that “occur primarily outside the territorial

16

jurisdiction of the United States, or transcend national

17

boundaries in terms of the means by which they are accomplished,

18

the persons they appear intended to intimidate or coerce, or the

19

locale in which their perpetrators operate or seek asylum.”

20

U.S.C. § 2331(1)(C) (emphasis added).

21

18

The bombings and shootings here occurred entirely outside

22

the territorial jurisdiction of the United States.

23

question becomes: What other constitutionally sufficient

40

Thus, the

Case 15-3135, Document 205-1, 08/31/2016, 1853117, Page41 of 61

1

connection did the commission of these torts by these defendants

2

have to this jurisdiction?

3

The jury found in a special verdict that the PA and the PLO

4

were liable for the attacks under several theories.

5

the attacks, the jury found that the PA and the PLO were liable

6

for providing material support or resources that were used in

7

preparation for, or in carrying out, each attack.

8
9

In all of

In addition, the jury found that in five of the attacks--the January 22, 2002 Jaffa Road Shooting, the January 27, 2002

10

Jaffa Road Bombing, the March 21, 2002 King George Street

11

Bombing, the July 31, 2002 Hebrew University Bombing, and the

12

January 29, 2004 Bus No. 19 Bombing---the PA was liable because

13

an employee of the PA, acting within the scope of the employee’s

14

employment and in furtherance of the activities of the PA,

15

either carried out, or knowingly provided material support or

16

resources that were used in preparation for, or in carrying out,

17

the attack.

18

The jury also found that in one of the attacks---the July

19

31, 2002 Hebrew University Bombing---the PLO and the PA harbored

20

or concealed a person who the organizations knew, or had

21

reasonable grounds to believe, committed or was about to commit

22

the attack.

23
24

Finally, the jury found that in three attacks---the June
19, 2002 French Hill Bombing, the July 31, 2002 Hebrew
41

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1

University Bombing, and the January 29, 2004 Bus No. 19 Bombing-

2

--the PA and PLO knowingly provided material support to an FTO-

3

designated group (the AAMB or Hamas).

4

But these actions, as heinous as they were, were not

5

sufficiently connected to the United States to provide specific

6

personal jurisdiction in the United States.

7

to conclude that the defendants participated in these acts in

8

the United States or that their liability for these acts

9

resulted from their actions that did occur in the United States.

10

There is no basis

In short, the defendants were liable for tortious

11

activities that occurred outside the United States and affected

12

United States citizens only because they were victims of

13

indiscriminate violence that occurred abroad.

14

citizenship of the plaintiffs is an insufficient basis for

15

specific jurisdiction over the defendants.

16

relationship of the defendants, the forum, and the defendants’

17

suit-related conduct points to the conclusion that there is no

18

specific personal jurisdiction over the defendants for the torts

19

in this case.

20

Goodyear, 564 U.S. at 923.

21

The residence or

A focus on the

See Walden, 134 S. Ct. at 1121; see also

In the absence of such a relationship, the plaintiffs argue

22

on appeal that the Court has specific jurisdiction for three

23

reasons.

24

test,” a defendant acting entirely outside the United States is

First, the plaintiffs argue that, under the “effects

42

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1

subject to jurisdiction “if the defendant expressly aimed its

2

conduct” at the United States.

3

Canadian Bank, SAL, 732 F.3d 161, 173 (2d Cir. 2013).

4

plaintiffs point to the jury verdict that found that the

5

defendants provided material support to designated FTOs---the

6

AAMB and Hamas---and that the defendants’ employees, acting

7

within the scope of their employment, killed and injured United

8

States citizens.

9

attacks were intended to influence United States policy to favor

Licci ex rel. Licci v. Lebanese
The

They also argue that the defendants’ terror

10

the defendants’ political goals.

11

that the defendants purposefully availed themselves of the forum

12

by establishing a continuous presence in the United States and

13

pressuring United States government policy by conducting terror

14

attacks in Israel and threatening further terrorism unless

15

Israel withdrew from Gaza and the West Bank.

16

Lambert, 305 F.3d at 128.

17

defendants consented to personal jurisdiction under the ATA by

18

appointing an agent to accept process.

19

Second, the plaintiffs argue

See Banks Brussels

Third, the plaintiffs argue that the

Walden forecloses the plaintiffs’ arguments.

First, with

20

regard to the effects test, the defendant must “expressly aim[]”

21

his conduct at the United States.

22

Pursuant to Walden, it is “insufficient to rely on a defendant’s

23

‘random, fortuitous, or attenuated contacts’ or on the

24

‘unilateral activity’ of a plaintiff” with the forum to
43

See Licci, 732 F. 3d at 173.

Case 15-3135, Document 205-1, 08/31/2016, 1853117, Page44 of 61

1

establish specific jurisdiction.

2

(quoting Burger King, 471 U.S. at 475).

3

related acts of terrorism are the kind of activities that the

4

ATA proscribes, those acts were unconnected to the forum and

5

were not expressly aimed at the United States.

6

State’s exercise of jurisdiction over an out-of-state

7

intentional tortfeasor must be based on intentional conduct by

8

the defendant that creates the necessary contacts with the

9

forum.”

Id.

Walden, 134 S. Ct. at 1123
While the killings and

And “[a] forum

That is not the case here.

10

The plaintiffs argue that United States citizens were

11

targets of these attacks, but their own evidence establishes the

12

random and fortuitous nature of the terror attacks.

13

example, at trial, the plaintiffs emphasized how the “killing

14

was indeed random” and targeted “Christians and Jews, Israelis,

15

Americans, people from all over the world.”

16

Evidence at trial showed that the shooters fired

17

“indiscriminately,” J.A. 3944, and chose sites for their suicide

18

bomb attacks that were “full of people,” J.A. 4030-31, because

19

they sought to kill “as many people as possible,” J.A. 3944; see

20

also J.A. 4031.

21

For

J.A. 3836.

The plaintiffs argue that “[i]t is a fair inference that

22

Defendants intended to hit American citizens by continuing a

23

terror campaign that continuously hit Americans . . . .”

24

Br. at 37 (emphasis in original).
44

Pls.’

But the Constitution requires

Case 15-3135, Document 205-1, 08/31/2016, 1853117, Page45 of 61

1

much more purposefully directed contact with the forum.

2

example, the Supreme Court has “upheld the assertion of

3

jurisdiction over defendants who have purposefully ‘reach[ed]

4

out beyond’ their State and into another by, for example,

5

entering a contractual relationship that ‘envisioned continuing

6

and wide-reaching contacts’ in the forum State,” Walden, 134 S.

7

Ct. at 1122 (alteration in original) (quoting Burger King, 472

8

U.S. at 479-80), or “by circulating magazines to ‘deliberately

9

exploi[t]’ a market in the forum State.”

For

Id. (alteration in

10

original) (quoting Keeton, 465 U.S. at 781).

11

such purposeful connection to the forum in this case, and it

12

would be impermissible to speculate based on scant evidence what

13

the terrorists intended to do.

14

But there was no

Furthermore, the facts of Walden also suggest that a

15

defendant’s mere knowledge that a plaintiff resides in a

16

specific jurisdiction would be insufficient to subject a

17

defendant to specific jurisdiction in that jurisdiction if the

18

defendant does nothing in connection with the tort in that

19

jurisdiction.

20

Georgia who was working as a deputized Drug Enforcement

21

Administration (“DEA”) agent at the Atlanta airport.

22

informed that the respondents, Gina Fiore and Keith Gipson, were

23

flying from San Juan, Puerto Rico through Atlanta en route to

24

their final destination in Las Vegas, Nevada.

In Walden, the petitioner was a police officer in

45

He was

See Joint

Case 15-3135, Document 205-1, 08/31/2016, 1853117, Page46 of 61

1

Appendix, Walden v. Fiore, 2013 WL 2390248, *41-42 (U.S.) (Decl.

2

of Anthony Walden).

3

respondents and searched their bags in Atlanta and examined

4

their California drivers’ licenses.

5

1119.

6

carry-on bag and seized it, giving rise to a claim for an

7

unconstitutional search under Bivens v. Six Unknown Named Agents

8

of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

9

Walden, 134 S. Ct. at 1119-20.

Walden and his DEA team stopped the

Id.; Walden, 134 S. Ct. at

Walden found almost $100,000 in cash in the respondents’

See

The Supreme Court found that the

10

petitioner’s contacts with Nevada were insufficient to establish

11

personal jurisdiction over the petitioner in a Nevada federal

12

court, even though Walden knew that the respondents were

13

destined for Nevada.

14

See id. at 1119.

In this case, the plaintiffs point us to no evidence that

15

these indiscriminate terrorist attacks were specifically

16

targeted against United States citizens, and the mere knowledge

17

that United States citizens might be wronged in a foreign

18

country goes beyond the jurisdictional limit set forth in

19

Walden.

20

The plaintiffs cite to several cases to support their

21

argument that specific jurisdiction is warranted under an

22

“effects test.”

23

this case.

Those cases are easily distinguishable from

Indeed, they point to the kinds of circumstances

46

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1

that would give rise to specific jurisdiction under the ATA,

2

which are not present here.

3

For example, in Mwani v. Bin Laden, 417 F.3d 1 (D.C. Cir.

4

2005), the Court of Appeals for the District of Columbia Circuit

5

found that specific personal jurisdiction over Osama Bin Laden

6

and al Qaeda was supported by allegations that they

7

“orchestrated the bombing of the American embassy in Nairobi,

8

not only to kill both American and Kenyan employees inside the

9

building, but to cause pain and sow terror in the embassy’s home

10

country, the United States,” as well as allegations of “an

11

ongoing conspiracy to attack the United States, with overt acts

12

occurring within this country’s borders.”

13

added).

14

bombing, as well as the plot to bomb the United Nations, Federal

15

Plaza, and the Lincoln and Holland Tunnels in New York.

16

Furthermore, the Court of Appeals found that bin Laden and al

17

Qaeda “‘purposefully directed’ [their] activities at residents”

18

of the United States, and that the case “result[ed] from

19

injuries to the plaintiffs ‘that arise out of or relate to those

20

activities,’” id. (quoting Burger King, 471 U.S. at 472).

Id. at 13 (emphasis

The plaintiffs pointed to the 1993 World Trade Center

Id.

21

“[E]xercising specific jurisdiction because the victim of a

22

foreign attack happened to be an American would run afoul of the

23

Supreme Court’s holding that ‘[d]ue process requires that a

24

defendant be haled into court in a forum State based on his own
47

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1

affiliation with the State, not based on the “random,

2

fortuitous, or attenuated” contacts he makes by interacting with

3

other persons affiliated with the State.’”

4

3d at 248 (quoting Walden, 134 S. Ct. at 1123); see Safra, 82 F.

5

Supp. 3d at 52 (distinguishing Mwani); see also In re Terrorist

6

Attacks on Sept. 11, 2001, 538 F.3d at 95-96 (holding that even

7

if Saudi princes could and did foresee that Muslim charities

8

would use their donations to finance the September 11 attacks,

9

providing indirect funding to an organization that was openly

Klieman, 82 F. Supp.

10

hostile to the United States did not constitute the type of

11

intentional conduct necessary to constitute purposeful direction

12

of activities at the forum); Livnat, 82 F. Supp. 3d at 33.

13

The plaintiffs also rely on O’Neill, 714 F.3d at 659, which

14

related to the September 11 attacks.

15

first clarified that “specific personal jurisdiction properly

16

exists where the defendant took ‘intentional, and allegedly

17

tortious, actions . . . expressly aimed’ at the forum.”

18

674 (quoting Calder, 465 U.S. at 789).

19

that, “the fact that harm in the forum is foreseeable . . .

20

insufficient for the purpose of establishing specific personal

21

jurisdiction over a defendant.”

22

the plaintiffs’ allegations were insufficient to establish

23

personal jurisdiction over about two dozen defendants, but that

24

jurisdictional discovery was warranted for twelve other

Id.

48

In that case, this Court

Id. at

This Court also noted
is

This Court then held that

Case 15-3135, Document 205-1, 08/31/2016, 1853117, Page49 of 61

1

defendants whose “alleged support of al Qaeda [was] more

2

direct.”

3

“allegedly controlled and managed some of [the front]

4

‘charitable organizations’ and, through their positions of

5

control, they allegedly sent financial and other material

6

support directly to al Qaeda when al Qaeda allegedly was known

7

to be targeting the United States.”

8

added).

9

Id. at 678; see also id. at 656-66.

Those defendants

Id. (second emphasis

The plaintiffs argue that this Court should likewise find

10

jurisdiction because the defendants’ “direct, knowing provision

11

of material support to designated FTOs [in this case, Hamas and

12

the AAMB] is enough---standing alone---to sustain specific

13

jurisdiction because they knowingly aimed their conduct at U.S.

14

interests.”

15

O’Neill.

16

that harm in the forum is foreseeable” was “insufficient for the

17

purpose of establishing specific personal jurisdiction over a

18

defendant,” 714 F.3d at 674, and the Court did not end its

19

inquiry when it concluded that the defendants may have provided

20

support to terror organizations.

21

“factual issues persist with respect to whether this support was

22

‘expressly aimed’ at the United States,” warranting

23

jurisdictional discovery.

24

the specific aim of the group receiving support---particularly

Pls.’ Br. at 36.

But that argument misreads

In O’Neill, this Court emphasized that the mere “fact

Indeed, the Court held that

Id. at 678-79.

49

The Court looked at

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1

that al Qaeda was “known to be targeting the United States”---

2

and not simply that it and other defendants were “terrorist

3

organizations.”

4

Id. at 678.13

The plaintiffs also cite Calder v. Jones, 465 U.S. at 783.

5

In that case, a California actress brought a libel suit in

6

California state court against a reporter and an editor, both of

7

whom worked for a tabloid at the tabloid’s Florida headquarters.

8

Id. at 784.

9

written and edited by the defendants in Florida for the tabloid,

The plaintiff’s claims were based on an article

10

which had a California circulation of about 600,000.

11

784-86.

12

personal jurisdiction over the defendants for a libel action was

13

proper based on the effects of the defendants’ conduct in

14

California.

15

sources, and the brunt of the harm, in terms both of

16

respondent’s emotional distress and the injury to her

17

professional reputation, was suffered in California,” the

18

Supreme Court held.

Id. at

The Supreme Court held that California’s assertion of

Id. at 788.

“The article was drawn from California

Id. at 788-89.

13

“In sum, California is the

Furthermore, the mere designation of a group as an FTO does
not reflect that the organization has aimed its conduct at the
United States. The Secretary of State may “designate an
organization as a foreign terrorist organization” if the
Secretary finds “the organization is a foreign organization,”
“the organization engages in terrorist activity,” “or retains
the capability and intent to engage in terrorist activity or
terrorism,” and “the terrorist activity or terrorism of the
organization threatens the security of United States nationals
or the national security of the United States.” 8 U.S.C.
§ 1189(a)(1)(A)-(C).
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focal point both of the story and of the harm suffered.”

2

789 (emphasis added); see also Walden, 134 S. Ct. at 1123

3

(describing the contacts identified in Calder as “ample” to

4

support specific jurisdiction).

5

in Walden, the jurisdictional inquiry in Calder focused on the

6

relationship among the defendant, the forum, and the litigation.

7

Walden, 134 S. Ct. at 1123.

8
9

Id. at

As the Supreme Court explained

Unlike in Calder, it cannot be said that the United States
is the focal point of the torts alleged in this litigation.

In

10

this case, the United States is not the nucleus of the harm---

11

Israel is.

12

See Safra, 82 F. Supp. 3d at 51.

Finally, the plaintiffs rely on two criminal cases, United

13

States v. Yousef, 327 F.3d 56 (2d Cir. 2003) (per curiam), and

14

United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011), for

15

their argument that the “effects test” supports jurisdiction.

16

In both cases, this Court applied the due process test for

17

asserting jurisdiction over extraterritorial criminal conduct,

18

which differs from the test applicable in this civil case, see

19

Al Kassar, 660 F.3d at 118; Yousef, 327 F.3d at 111-12, and does

20

not require a nexus between the specific criminal conduct and

21

harm within the United States.

22

Murillo, No. 15-4235, 2016 WL 3257016, at *3 (4th Cir. June 14,

23

2016)(“[I]t is not arbitrary to prosecute a defendant in the

24

United States if his actions affected significant American

See also United States v.

51

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1

interests---even if the defendant did not mean to affect those

2

interests.” (internal citation and quotation marks omitted)).

3

In order to apply a federal criminal statute to a defendant

4

extraterritorially consistent with due process, “‘there must be

5

a sufficient nexus between the defendant and the United States,

6

so that such application would not be arbitrary or fundamentally

7

unfair.’

8

jurisdictional nexus exists when the aim of that activity is to

9

cause harm inside the United States or to U.S. citizens or

For non-citizens acting entirely abroad, a

10

interests.”

11

(quoting Yousef, 327 F.3d at 111).

12

Al Kassar, 660 F.3d 108, 118 (emphasis added)

In a civil action, as Walden makes clear, “the defendant’s

13

suit-related conduct must create a substantial connection with

14

the forum State.”

15

134 S. Ct. at 1121.

Even setting aside the fact that both Yousef and Al Kassar

16

applied the more expansive due process test in criminal cases,

17

the defendants in both cases had more substantial connections

18

with the United States than the defendants have in the current

19

litigation.

20

bombing of an airplane traveling from the Philippines to Japan.

21

See 327 F.3d at 79.

22

a dozen United States-flag aircraft in an effort to inflict

23

injury on this country and its people and influence American

24

foreign policy, and their attack on the Philippine Airlines

Yousef involved a criminal prosecution for the

The Yousef defendants “conspired to attack

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1

flight was a ‘test-run’ in furtherance of this conspiracy.”

2

at 112.

3

Id.

In Al Kassar, several defendants were convicted of

4

conspiring to kill United States officers, to acquire and export

5

anti-aircraft missiles, and knowingly to provide material

6

support to a terrorist organization; two were also convicted of

7

conspiring to kill United States citizens and of money

8

laundering.

9

challenged their convictions on a number of grounds, including

660 F.3d at 115.

On appeal, the defendants

10

that the defendants’ Fifth Amendment due process rights were

11

violated by prosecuting them for activities that occurred

12

abroad.

13

because the defendants conspired to sell arms to a group “with

14

the understanding that they would be used to kill Americans and

15

destroy U.S. property; the aim therefore was to harm U.S.

16

citizens and interests and to threaten the security of the

17

United States.”

Id. at 117-18.

This Court rejected that argument

Id. at 118.

18

In this case, the defendants undertook terror attacks

19

within Israel, and there is no evidence the attacks specifically

20

targeted United States citizens.

21

53-54; see also Livnat, 82 F. Supp. 3d at 34.

22
23

See Safra, 82 F. Supp. 3d at

Accordingly, in the present case, specific jurisdiction is
not appropriate under the “effects test.”

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Second, Walden undermines the plaintiffs’ arguments that

2

the defendants met the “purposeful availment” test by

3

establishing a continuous presence in the United States and

4

pressuring United States government policy.

5

defendants’ Washington, D.C. mission confuses the issue: Walden

6

requires that the “suit-related conduct”---here, the terror

7

attacks in Israel---have a “substantial connection with the

8

forum.” 134 S. Ct. at 1121.

9

and its associated lobbying efforts do not support specific

The emphasis on the

The defendants’ Washington mission

10

personal jurisdiction on the ATA claims.

11

be made to answer in this forum “with respect to matters

12

unrelated to the forum connections.”

13

see also Klieman, 82 F. Supp. 3d at 247 (“Courts typically

14

require that the plaintiff show some sort of causal relationship

15

between a defendant’s U.S. contacts and the episode in suit.”).

The defendants cannot

Goodyear, 564 U.S. at 923;

16

The plaintiffs argue on appeal that the defendants intended

17

their terror campaign to influence not just Israel, but also the

18

United States.

19

pamphlets published by the PA---that, the plaintiffs argue,

20

shows that the defendants were attempting to influence United

21

States policy toward the Israel-Palestinian conflict.

22

exhibits themselves speak in broad terms of how United States

23

interests in the region are in danger and how the United States

24

and Europe should exert pressure on Israel to change its

They point to trial evidence---specifically

54

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1

practices toward the Palestinians. It is insufficient for

2

purposes of due process to rely on evidence that a political

3

organization sought to influence United States policy, without

4

some other connection among the activities underlying the

5

litigation, the defendants, and the forum.

6

activity is insufficient under Walden.

7

Such attenuated

The plaintiffs cite Licci, 732 F.3d 161, to support their

8

argument that the defendants meet the purposeful availment test.

9

But the circumstances of that case are distinguishable and

10

illustrate why the defendants here do not meet that test.

11

Licci, American, Canadian, and Israeli citizens who were injured

12

or whose family members were killed in a series of terrorist

13

rocket attacks by Hizbollah in Israel brought an action under

14

the ATA and other laws against the Lebanese Canadian Bank, SAL

15

(“LCB”), which allegedly facilitated Hizbollah’s acts by using

16

correspondent banking accounts at a defendant New York bank

17

(American Express Bank Ltd.) to effectuate wire transfers

18

totaling several million dollars on Hizbollah’s behalf.

19

164-66.

20

jurisdiction over the defendants was constitutional because of

21

the defendants’ “repeated use of New York’s banking system, as

22

an instrument for accomplishing the alleged wrongs for which the

23

plaintiffs seek redress.”

24

constituted “‘purposeful[] avail[ment] . . . of the privilege of

In

Id. at

This Court concluded that the exercise of personal

Id. at 171.

55

These contacts

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1

doing business in [New York],’ so as to permit the subjecting of

2

LCB to specific jurisdiction within the Southern District of New

3

York . . . .”

4

127).

5

Id. (quoting Bank Brussels Lambert, 305 F.3d at

“It should hardly be unforeseeable to a bank that selects

6

and makes use of a particular forum’s banking system that it

7

might be subject to the burden of a lawsuit in that forum for

8

wrongs related to, and arising from, that use.”

9

(emphasis added) (footnote omitted).

10

Id. at 171-72

In Licci, this Court also distinguished the “effects test”

11

theory of personal jurisdiction which is “typically invoked

12

where (unlike here) the conduct that forms the basis for the

13

controversy occurs entirely out-of-forum, and the only relevant

14

jurisdictional contacts with the forum are therefore in-forum

15

effects harmful to the plaintiff.”

16

(footnote omitted).

17

inappropriate because “the constitutional exercise of personal

18

jurisdiction over a foreign defendant” turned on conduct that

19

“occur[ed] within the forum,” id. (emphasis in original), namely

20

the repeated use of bank accounts in New York to support the

21

alleged wrongs for which the plaintiffs sued.

Id. at 173 (emphasis added)

The Court held that the effects test was

22

In this case, there is no such connection between the

23

conduct on which the alleged personal jurisdiction is based and

24

the forum.

And the connections the defendants do have with the
56

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United States---the Washington, D.C. and New York missions---

2

revolve around lobbying activities that are not proscribed by

3

the ATA and are not connected to the wrongs for which the

4

plaintiffs here seek redress.

5

At a hearing before the district court, the plaintiffs also

6

cited Bank Brussels Lambert, 305 F.3d 120, as their “best case”

7

for their purposeful availment argument.

8

that case, too, is distinguishable.

9

its lawyers for legal malpractice that occurred in Puerto Rico.

See J.A. 1128.

But

There, a client bank sued

10

Bank Brussels Lambert, 305 F.3d at 123.

11

the Puerto Rican law firm defendant had sufficient minimum

12

contacts with the New York forum and purposely availed itself of

13

the privilege of doing business in New York, because, although

14

the law firm did not solicit the bank as a client in New York,

15

the firm maintained an apartment in New York partially for the

16

purpose of better servicing its New York clients, the firm faxed

17

newsletters regarding Puerto Rican legal developments to persons

18

in New York, the firm had numerous New York clients, and its

19

marketing materials touted the firm’s close relationship with

20

the Federal Reserve Bank of New York.

21

engagement which gave rise to the dispute here is not simply one

22

of a string of fortunate coincidences for the firm.

23

picture which emerges from the above facts is that of a law firm

24

which seeks to be known in the New York legal market, makes
57

This Court held that

Id. at 127-29.

“The

Rather, the

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1

efforts to promote and maintain a client base there, and profits

2

substantially therefrom.”

3

there was “nothing fundamentally unfair about requiring the firm

4

to defend itself in the New York courts when a dispute arises

5

from its representation of a New York client---a representation

6

which developed in a market it had deliberately cultivated and

7

which, after all, the firm voluntarily undertook.”

8

In short, the defendants’ contacts with the forum were

9

sufficiently related to the malpractice claims that were at

10
11

Id. at 128.

This Court held that

Id. at 129.

issue in the suit.
That is not the case here.

The plaintiffs’ claims did not

12

arise from the defendants’ purposeful contacts with the forum.

13

And where the defendant in Bank Brussels Lambert purposefully

14

and repeatedly reached into New York to obtain New York clients-

15

--and as a result of those activities, it obtained a

16

representation for which it was sued---in this case, the

17

plaintiffs’ claims did not arise from any activity by the

18

defendants in this forum.

19

Thus, in this case, unlike in Licci and Bank Brussels

20

Lambert, the defendants are not subject to specific personal

21

jurisdiction based on a “purposeful availment” theory because

22

the plaintiffs’ claims do not arise from the defendants’

23

activity in the forum.

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1

Third, the plaintiffs’ argue that the defendants consented

2

to personal jurisdiction under the ATA by appointing an agent to

3

accept process.

4

process on the representative of the PLO and PA in Washington.

5

See 18 U.S.C. § 2334(a).

6

the constitutional question of whether due process is satisfied.

7

The plaintiffs contend that under United States v. Scophony

It is clear that the ATA permitted service of

However, the statute does not answer

8

Corp. of America, 333 U.S. 795 (1948), meeting the statutory

9

requirement for service of process suffices to establish

10

personal jurisdiction.

11

proposition.

12

business’ of a substantial character in the New York district at

13

the times of service, so as to establish venue there,” and so

14

that “such a ruling presents no conceivable element of offense

15

to ‘traditional notions of fair play and substantial justice.’”

16

Id. at 818 (quoting Int’l Shoe, 326 U.S. at 316).

17

Scophony affirms the understanding, echoed by this Court in

18

Licci, 673 F.3d at 60, and O’Neill, 714 F.3d at 673-74, that due

19

process analysis---considerations of minimum contacts and

20

reasonableness---applies even when federal service-of-process

21

statutes are satisfied.

22

jurisdiction must comport with constitutional due process

23

principles.”

24

641.

But Scophony does not stand for that

The defendant in Scophony “was ‘transacting

Thus,

Simply put, “the exercise of personal

Licci, 673 F.3d at 60; see also Brown, 814 F.3d at

As explained above, due process is not satisfied in this
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1

case, and the courts have neither general nor specific personal

2

jurisdiction over the defendants, regardless of the service-of-

3

process statute.

4

In sum, because the terror attacks in Israel at issue here

5

were not expressly aimed at the United States and because the

6

deaths and injuries suffered by the American plaintiffs in these

7

attacks were “random [and] fortuitous” and because lobbying

8

activities regarding American policy toward Israel are

9

insufficiently “suit-related conduct” to support specific

10

jurisdiction, the Court lacks specific jurisdiction over these

11

defendants.

Walden, 134 S. Ct. at 1121, 1123.

12
13

***
The terror machine gun attacks and suicide bombings that

14

triggered this suit and victimized these plaintiffs were

15

unquestionably horrific.

16

jurisdiction in a civil case beyond the limits prescribed by the

17

due process clause of the Constitution, no matter how horrendous

18

the underlying attacks or morally compelling the plaintiffs’

19

claims.

20

But the federal courts cannot exercise

The district court could not constitutionally exercise

21

either general or specific personal jurisdiction over the

22

defendants in this case.

23

dismissed.

Accordingly, this case must be

24
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1

CONCLUSION

2

We have considered all of the arguments of the parties.

3

the extent not specifically addressed above, they are either

4

moot or without merit.

5

VACATE the judgment of the district court and REMAND the case to

6

the district court with instructions to DISMISS the case for

7

want of jurisdiction.

To

For the reasons explained above, we

61