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 (
Argued: April 12, 2016
("defendants") appeal from a judgment of the United
States District Court for the Southern District of New York
(Daniels, J.) in favor of the
("plaintiffs"). A jury found the defendants---the
Palestine Liberation Organization and the Palestinian
Authority---liable under the Anti-Terrorism Act
("ATA"), 18 U.S.C. § 2333(a), for various
terror attacks in Israel that killed or wounded United States
citizens. The jury awarded the plaintiffs damages of $218.5
million, an amount that was trebled automatically pursuant to
the ATA, 18 U.S.C. § 2333(a), bringing the total award
to $655.5 million. The defendants appeal, arguing that the
district court lacked general and specific personal
jurisdiction over the defendants, and, in the alternative,
seek a new trial because the district court abused its
discretion by allowing certain testimony by two expert
witnesses. The plaintiffs cross-appeal, asking this Court to
reinstate claims the district court dismissed.
vacate the judgment of the district court and remand the case
with instructions to dismiss the action because the federal
courts lack personal jurisdiction over the defendants with
respect to the claims in this action. We do not reach the
A. YALOWITZ, Arnold & Porter, LLP, for
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.
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
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
Before: Leval and Droney, Circuit Judges, and Koeltl,
District Judge. [*]
G. KOELTL, DISTRICT JUDGE.
case, eleven American families sued the Palestine Liberation
Organization ("PLO") and the Palestinian Authority
"defendants") under the Anti-Terrorism Act
("ATA"), 18 U.S.C. § 2333(a), for various
terror attacks in Israel that killed or wounded the
("plaintiffs") or their family
defendants repeatedly argued before the District Court for
the Southern District of New York that the court lacked
personal jurisdiction over them in light of their minimal
presence in, and the lack of any nexus between the facts
underlying the plaintiffs' claims and the United States.
The district court (Daniels, J.) concluded that it
had general personal jurisdiction over the defendants, even
after the Supreme Court narrowed the test for general
jurisdiction in Daimler AG v. Bauman, 134 S.Ct. 746
(2014). See Sokolow v. Palestine Liberation Org.,
No. 04-cv-397 (GBD), 2014 WL 6811395, at *2 (S.D.N.Y. Dec. 1,
2014); see also Sokolow v. Palestine Liberation
Org., No. 04-cv-397 (GBD), 2011 WL 1345086, at *7
(S.D.N.Y. Mar. 30, 2011).
seven-week trial, a jury found that the defendants, acting
through their employees, perpetrated the attacks and that the
defendants knowingly provided material support to
organizations designated by the United States State
Department as foreign terrorist organizations. The jury
awarded the plaintiffs damages of $218.5 million, an amount
that was trebled automatically pursuant to the ATA, 18 U.S.C.
§ 2333(a), bringing the total award to $655.5 million.
appeal, the defendants seek to overturn the jury's
verdict by arguing that the United States Constitution
precludes the exercise of personal jurisdiction over them. In
the alternative, the defendants seek a new trial, arguing
that the district court abused its discretion by allowing
certain testimony by two expert witnesses. The plaintiffs
cross-appeal, asking this Court to reinstate non-federal
claims that the district court dismissed, and reinstate the
claims of two plaintiffs for which the district court found
insufficient evidence to submit to the jury.
conclude that the district court erred when it concluded it
had personal jurisdiction over the defendants with respect to
the claims at issue in this action. Therefore, we VACATE the
judgment of the district court and REMAND the case to the
district court with instructions to DISMISS the case for want
of personal jurisdiction. Accordingly, we do not consider the
defendants' other arguments on appeal or the
plaintiffs' cross-appeal, all of which are now moot.
was established by the 1993 Oslo Accords as the interim and
non-sovereign government of parts of the West Bank and the
Gaza Strip (collectively referred to here as
"Palestine"). The PA is headquartered in the city
of Ramallah in the West Bank, where the Palestinian President
and the PA's ministers reside.
was founded in 1964. At all relevant times, the PLO was
headquartered in Ramallah, the Gaza Strip, and Amman, Jordan.
Because the Oslo Accords limit the PA's authority to
Palestine, the PLO conducts Palestine's foreign affairs.
the relevant time period for this action, the PLO maintained
over 75 embassies, missions, and delegations around the
world. The PLO is registered with the United States
Government as a foreign agent. The PLO has two diplomatic
offices in the United States: a mission to the United States
in Washington, D.C. and a mission to the United Nations in
New York City. The Washington, D.C. mission had fourteen
employees between 2002 and 2004, including two employees of
the PA, although not all at the same time. The Washington,
D.C. and New York missions engaged in diplomatic activities
during the relevant period. The Washington, D.C. mission
"had a substantial commercial presence in the United
States." Sokolow, 2011 WL 1345086, at *4. It
used dozens of telephone numbers, purchased office supplies,
paid for certain living expenses for Hassan Abdel Rahman, the
chief PLO and PA representative in the United States, and
engaged in other transactions. Id. The PLO also
retained a consulting and lobbying firm through a multi-year,
multi-million-dollar contract for services from about 1999 to
2004. Id. The Washington, D.C. mission also promoted
the Palestinian cause in speeches and media appearances.
have repeatedly held that neither the PA nor the PLO is a
"state" under United States or international law.
See Klinghoffer v. S. N.C. Achille Lauro, 937 F.2d
44, 47-48 (2d Cir. 1991) (holding the PLO, which had no
defined territory or permanent population and did not have
capacity to enter into genuine formal relations with other
nations, was not a "state" for purposes of the
Foreign Sovereign Immunities Act); Estates of Ungar v.
Palestinian Auth., 315 F.Supp.2d 164, 178-86 (D.R.I.
2004) (holding that neither the PA nor the PLO is a state
entitled to sovereign immunity under the Foreign Sovereign
Immunities Act because neither entity has a defined territory
with a permanent population controlled by a government that
has the capacity to enter into foreign relations); see
also Knox v. Palestine Liberation Org., 306 F.Supp.2d
424, 431 (S.D.N.Y. 2004) (holding that neither the PLO nor
the PA was a "state" for purposes of the Foreign
Sovereign Immunities Act).
the United States does not recognize Palestine or the PA as a
sovereign government, see Sokolow v. Palestine Liberation
Org., 583 F.Supp.2d 451, 457-58 (S.D.N.Y. 2008)
("Palestine, whose statehood is not recognized by the
United States, does not meet the definition of a 'state,
' under United States and international law . . .
.") (collecting cases), the PA is the governing
authority in Palestine and employs tens of thousands of
security personnel in Palestine. According to the PA's
Minister of Finance, the "PA funds conventional
government services, including developing infrastructure;
public safety and the judicial system; health care; public
schools and education; foreign affairs; economic development
initiatives in agriculture, energy, public works, and public
housing; the payment of more than 155, 000 government
employee salaries and related pension funds; transportation;
and, communications and information technology
plaintiffs sued the defendants in 2004, alleging violations
of the ATA for seven terror attacks committed during a wave
of violence known as "the al Aqsa Intifada, " by
nonparties who the plaintiffs alleged were affiliated with
the defendants. The jury found the plaintiffs liable for six
of the attacks. At trial, the plaintiffs presented
evidence of the following attacks.
January 22, 2002: Jaffa Road Shooting
January 22, 2002, a PA police officer opened fire on a
pedestrian mall in Jerusalem. He shot "indiscriminately
at the people who were on Jaffa Street, " at a nearby
bus stop and aboard a bus that was at the stop, and at people
in the stores nearby "with the aim of causing the death
of as many people as possible." The shooter killed two
individuals and wounded forty-five others before he was
killed by police. The attack was carried out, according to
trial evidence, by six members of the PA police force who
planned the shooting. Two of the plaintiffs were injured.
January 27, 2002: Jaffa Road Bombing
January 27, 2002, a PA intelligence informant named Wafa
Idris detonated a suicide bomb on Jaffa Road in Jerusalem,
killing herself and an Israeli man and seriously wounding
four of the plaintiffs, including two children. Evidence
presented at trial showed that the bombing was planned by a
PA intelligence officer who encouraged the assailant to
conduct the suicide bombing, even after the assailant had
doubts about doing so.
March 21, 2002: King George Street Bombing
March 21, 2002, Mohammed Hashaika, a former PA police
officer, detonated a suicide bomb on King George Street in
Jerusalem. Hashaika's co-conspirators chose the location
because it was "full of people during the
afternoon." Hashaika set-off the explosion while in a
crowd "with the aim of causing the deaths of as many
civilians as possible." Two plaintiffs were grievously
wounded, including a seven-year-old American boy. Evidence
presented at trial showed that a PA intelligence officer
named Abdel Karim Aweis orchestrated the attack.
June 19, 2002: French Hill Bombing
19, 2002, a seventeen-year-old Palestinian man named
Sa'id Awada detonated a suicide bomb at a bus stop in the
French Hill neighborhood of Jerusalem. Awada was a member of
a militant faction of the PLO's Fatah party called the Al
Aqsa Martyr Brigades ("AAMB"), which the United
States Department of State had designated as a "foreign
terrorist organization" ("FTO"). The bombing
killed several people and wounded dozens, including an
eighteen-year-old plaintiff who was stepping off a bus when
the bomb exploded.
July 31, 2002: Hebrew University Bombing
31, 2002, military operatives of Hamas---a United
States-designated FTO---detonated a bomb hidden in a black
cloth bag that was packed with hardware nuts in a café
at Hebrew University in Jerusalem. The explosion killed nine,
including four United States citizens, whose estates bring
January 29, 2004: Bus No. 19 Bombing
January 29, 2004, in an AAMB attack, a PA police officer
named Ali Al-Ja'ara detonated a suicide vest on a crowded
bus, Bus No. 19 traveling from Malha Mall toward Paris Square
in central Jerusalem. The suicide bombing killed eleven
people, including one of the plaintiffs. The bomber's
aim, according to evidence submitted at trial, was to
"caus[e] the deaths of a large number of
2004, the plaintiffs filed suit in the Southern District of
New York. The defendants first moved to dismiss the claims
for lack of personal jurisdiction in July 2007. The district
court denied the motion, subject to renewal after
jurisdictional discovery. After the close of jurisdictional
discovery, the district court denied the defendants'
renewed motion, holding that the court had general personal
jurisdiction over the defendants. See Sokolow, 2011
WL 1345086, at *7.
district court concluded, as an initial matter, that the
service of process was properly effected by serving the Chief
Representative of the PLO and the PA, Hassan Abdel Rahman, at
his home in Virginia, pursuant to Federal Rule of Civil
Procedure 4(h)(1)(B) (providing that a foreign association
"must be served[ ] . . . in a judicial district of the
United States . . . by delivering a copy of the summons and
of the complaint to an officer, a managing or general agent .
. . ."); see also 18 U.S.C. § 2334(a)
(providing for nationwide service of process and venue under
the ATA); Sokolow, 2011 WL 1345086, at *2.
district court then engaged in a two-part analysis to
determine whether the exercise of personal jurisdiction
comported with the due process protections of the United
States Constitution. First, it determined whether the
defendants had sufficient minimum contacts with the forum
such that the maintenance of the action did not offend
traditional notions of fair play and substantial justice.
Sokolow, 2011 WL 1345086, at *2 (citing Frontera
Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan
Republic, 582 F.3d 393, 396 (2d Cir. 2009)).
district court distinguished between specific and general
personal jurisdiction---specific jurisdiction applies where
the defendants' contacts are related to the litigation
and general jurisdiction applies where the defendants'
contacts are so substantial that the defendants could be sued
on all claims, even those unrelated to contacts with the
forum---and found that the district court had general
jurisdiction over the defendants. Id. at *3. The
court considered what it deemed the defendants'
"substantial commercial presence in the United States,
" in particular "a fully and continuously
functional office in Washington, D.C., " bank accounts
and commercial contracts, and "a substantial promotional
presence in the United States, with the D.C. office having
been permanently dedicated to promoting the interests of the
PLO and the PA." Id. at *4.
district court concluded that activities involving the
defendants' New York office were exempt from
jurisdictional analysis under an exception for United
Nations' related activity articulated in
Klinghoffer, 937 F.2d at 51-52 (UN participation not
properly considered basis for jurisdiction); see
Sokolow, 2011 WL 1345086, at *5. The district court held
that the activities involving the Washington, D.C. mission
were not exempt from analysis and provided "a sufficient
basis to exercise general jurisdiction over the
Defendants." Id. at *6 ("The PLO and the
PA were continuously and systematically present in the United
States by virtue of their extensive public relations
the district court considered "'whether the
assertion of personal jurisdiction comports with
"traditional notions of fair play and substantial
justice"---that is, whether it is reasonable under the
circumstances of the particular case.'" Id.
(quoting Metro. Life Ins. Co. v. Robertson-Ceco
Corp., 84 F.3d 560, 568 (2d Cir. 1996)). The court found
that the exercise of jurisdiction did not offend
"traditional notions of fair play and substantial
justice, " pursuant to the standard articulated by
International Shoe Co. v. Washington, 326 U.S. 310,
316 (1945), and its progeny. See Sokolow, 2011 WL
1345086, at *6-7. The district court concluded that
"[t]here is a strong inherent interest of the United
States and Plaintiffs in litigating ATA claims in the United
States, " and that the defendants "failed to
identify an alternative forum where Plaintiffs' claims
could be brought, and where the foreign court could grant a
substantially similar remedy." Id. at *7.
January 2014, after the Supreme Court had significantly
narrowed the general personal jurisdiction test in
Daimler, 134 S.Ct. 746, the defendants moved for
reconsideration of the denial of their motion to dismiss.
April 11, 2014, the district court denied the defendants'
motions for reconsideration, ruling that Daimler did
not compel dismissal. The district court also denied the
defendants' motions to certify the jurisdictional issue
for an interlocutory appeal. See Sokolow, 2014 WL
6811395, at *1. The defendants renewed their jurisdictional
argument in their motions for summary judgment, arguing that
this Court's decision in Gucci America, Inc. v.
Weixing Li, 768 F.3d 122 (2d Cir. 2014), altered the
controlling precedent in this Circuit, requiring dismissal of
the case. See Sokolow, 2014 WL 6811395, at *1. The
district court concluded that it still had general personal
jurisdiction over the defendants, describing the action as
presenting "'an exceptional case, '"
id. at *2, of the kind discussed in
Daimler, 134 S.Ct. at 761 n.19, and Gucci,
768 F.3d at 135.
district court held that "[u]nder both Daimler
and Gucci, the PA and PLO's continuous and
systematic business and commercial contacts within the United
States are sufficient to support the exercise of general
jurisdiction, " and that the record before the court was
"insufficient to conclude that either defendant is
'at home' in a particular jurisdiction other than the
United States." Sokolow, 2014 WL 6811395, at
the summary judgment ruling, the defendants sought
mandamus on the personal jurisdiction issue. This
Court denied the defendants' petition. See In re
Palestine Liberation Org., Palestinian Authority, No.
14-4449 (2d Cir. Jan. 6, 2015) (summary order).
case proceeded to trial in January 2015. During the trial,
the defendants introduced evidence about the PA's and
PLO's home in Palestine. The trial evidence showed that
the terrorist attacks occurred in the vicinity of Jerusalem.
The plaintiffs did not allege or submit evidence that the
plaintiffs were targeted in any of the six attacks at issue
because of their United States citizenship or that the
defendants engaged in conduct in the United States related to
conclusion of plaintiffs' case in chief, the defendants
moved for judgment as a matter of law under Federal Rule of
Civil Procedure 50(a), arguing, among other grounds, that the
district court lacked personal jurisdiction over the
defendants. The Court denied the motion. The defendants
renewed that motion at the close of all the evidence and
again asserted that the court lacked personal jurisdiction.
and immediately after trial, the District Court for the
District of Columbia issued three separate decisions
dismissing similar suits for lack of personal jurisdiction by
similar plaintiffs in cases against the PA and the PLO.
See Estate of Klieman v. Palestinian Auth., 82
F.Supp.3d 237, 245-46 (D.D.C. 2015), appeal
docketed, No. 15-7034 (D.C. Cir. Apr. 8, 2015);
Livnat v. Palestinian Auth., 82 F.Supp.3d 19, 30
(D.D.C. 2015), appeal docketed, No. 15-7024 (D.C.