Livnat v. The Palestinian Authority, No. 2014-CV-00668 (D.D.C. Feb. 11, 2015) [click for opinion]
On April 24, 2011, Palestinian Authority ("PA") security forces allegedly shot and killed Ben-Yosef Livnat and injured five others while Livnat, his brother, and fifteen other Israeli residents visited a Jewish holy site near the West Bank city of Nablus. Livnat's family members brought two claims against the PA in the U.S. District Court for the District of Columbia under the civil liability provision of the Anti-Terrorism Act, 18 U.S.C. § 2333(a) . Plaintiffs asserted that the attack was part of the PA's policy and practice of encouraging acts of terror and using terrorism to influence U.S. public opinion and policy.
Defendant moved to dismiss the action under Fed. R. of Civ. P. 12(b)(2) for lack of personal jurisdiction, arguing that it had insufficient contacts with the United States to support jurisdiction in light of the 2014 U.S. Supreme Court decision in Daimler v. Bauman, which narrowed general jurisdiction over foreign defendants to those whose affiliations with the forum are "so 'continuous and systematic' as to render [them] essentially at home" there.
In opposition, Plaintiffs argued that Daimler applied only to corporations, not to entities like the PA, and that Daimler's inquiry was limited to evaluating contacts with an individual state under the Fourteenth Amendment, rather than with the United States as a whole under the Fifth Amendment. In the alternative, Plaintiffs argued that Defendant was "at home" in the U.S. because it operated an office in the U.S., conducted public relations and other activities in the U.S., and received hundreds of millions of dollars in U.S. aid each year. Moreover, Plaintiffs asserted that the court had personal jurisdiction pursuant to Fed. R. of Civ. P. 4(k)(2), which states that service establishes jurisdiction if "the defendant is not subject to jurisdiction in any state's court of general jurisdiction" and "exercising jurisdiction is consistent with the United States Constitution and laws." Plaintiffs also filed a cross-motion for leave to take jurisdictional discovery.
As a threshold matter, the court held that the PA, a non-sovereign government, has Due Process rights and that jurisdiction over the PA can only be exercised in accordance with those rights. The district court held that under Daimler, Plaintiffs had the burden to overcome the common sense presumption that a non-sovereign government is "at home" in the place they govern. Here, the PA's alleged contacts with the United States failed to do so, because the PA's consular services, community outreach, and cultural events within the U.S. were more consistent with a government or affiliate operating abroad than with the operations of a government "at home." Accordingly, the court concluded that it did not have general jurisdiction over the PA. The court noted that it respectfully disagreed with the approach taken by the Southern District of New York in another case applying Daimler to the PA in December 2014. In that case, the court denied the PA's and the Palestine Liberation Organization's ("PLO") motion to dismiss for lack of jurisdiction, concluding that the court could exercise personal jurisdiction over the PA and the PLO because the record was insufficient to conclude defendants were "at home" anywhere besides the U.S.
The court also denied Plaintiffs' request for jurisdictional discovery with respect to general jurisdiction, stating that additional information regarding the PA's activities in the U.S. or tying the PA to the PLO still could not plausibly show that the PA is "essentially at home" in the U.S.
Additionally, the court evaluated specific jurisdiction and found it lacking. Although Plaintiffs argued that the PA's attack was directed at influencing U.S. foreign policy, the court held that there were insufficient links between the specific acts underlying the lawsuit and the United States to support specific jurisdiction. Applying the U.S. Supreme Court's 2014 decision in Walden v. Fiore, which held that the minimum contacts analysis looks to the defendant's contacts with the forum state itself rather than with its citizens, the court also held that Plaintiffs could not base specific jurisdiction on the effects of the PA's acts on U.S. citizens living in Israel. Thus, Plaintiffs failed to present a prima facie case for specific jurisdiction over the PA.
As it had neither specific nor general jurisdiction over the PA, the court granted the PA's motion to dismiss the lawsuit in its entirety.