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Estate of Klieman v. Palestinian Authority

United States Court of Appeals, District of Columbia Circuit

May 14, 2019

Estate of Esther Klieman, by and through its Administrator, Aaron Kesner, et al., Appellants
Palestinian Authority, also known as Palestinian Interim Self-Government Authority and Palestinian Liberation Organization, also known as PLO, Appellees

          Argued December 13, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:04-cv-01173)

          Edward B. MacAllister argued the cause for appellants. With him on the briefs were Richard D. Heideman, Tracy Reichman Kalik, and Steven R. Perles.

          Mitchell R. Berger argued the cause for appellees. With him on the brief were Gassan A. Baloul and Alexandra E. Chopin. Pierre H. Bergeron, John Burlingame, and Laura G. Ferguson entered appearances.

          Before: Garland, Chief Judge, Katsas, Circuit Judge, and Williams, Senior Circuit Judge.



         During the Second Intifada, Palestinian terrorists ambushed an Israeli public bus traveling in the West Bank and opened fire, killing an American schoolteacher, Esther Klieman. Klieman's estate (along with some survivors and heirs) sued numerous defendants- including the Palestinian Authority ("PA") and Palestinian Liberation Organization ("PLO")-under the Anti-Terrorism Act ("ATA"), 18 U.S.C. §§ 2331, et seq., among other laws. Having previously dismissed the case against all non-PA/PLO defendants for insufficient service of process, Estate of Klieman v. Palestinian Auth., 547 F.Supp.2d 8, 15 (D.D.C. 2008), the district court dismissed the case against the PA/PLO for want of personal jurisdiction under the constraints of the due process clause, Estate of Klieman v. Palestinian Auth., 82 F.Supp.3d 237 (D.D.C. 2015). Plaintiffs now appeal.

         In Livnat v. Palestinian Authority, 851 F.3d 45, 48-54 (D.C. Cir. 2017), cert. denied, 139 S.Ct. 373 (2018), this court held that the due process clause of the 5th Amendment barred U.S. courts from exercising jurisdiction over non-sovereign foreign entities without an adequate nexus to the United States. (In contrast, foreign sovereigns sued in the United States do not enjoy the benefit of this due process protection.) The district court here found that plaintiffs had failed to establish such a nexus for the PA/PLO.

         We agree. We conclude that the district court did not abuse its discretion in agreeing, in light of the intervening Supreme Court case of Daimler AG v. Bauman, 571 U.S. 117 (2014), to reconsider its earlier ruling that the court had general personal jurisdiction over defendants. As plaintiffs recognize, Daimler (and this court's opinion in Livnat) effectively foreclose a ruling that the district court had general jurisdiction over the PA/PLO. See Klieman Br. 29. We then consider plaintiffs' argument for specific jurisdiction and their request for discovery to substantiate that theory, but find both sets of arguments inadequate. Finally, we address § 4 of the Anti-Terrorism Clarification Act of 2018, Pub. L. No. 115-253, 132 Stat. 3183 ("ATCA") (codified at 18 U.S.C. § 2334(e)), enacted during the pendency of this appeal and deeming certain conduct to qualify as consent to the jurisdiction of U.S. courts over terrorism cases. We find that plaintiffs have established neither the circumstances rendering § 4 applicable nor facts justifying a remand for discovery on the issue. Accordingly, we affirm the decision of the district court.

         * * *

         On March 24, 2002, a group of terrorists carried out an attack on an Israeli bus in the West Bank, killing Esther Klieman. See Estate of Klieman, 82 F.Supp.3d at 240; see also Compl. ¶¶ 23-25 (Jul. 13, 2004), ECF No. 1.[1] Plaintiffs brought suit in 2004 against a host of defendants, including the PA, PLO, and other Palestinian individuals and entities, including the Al Aqsa Martyrs Brigade, a U.S.-designated Foreign Terrorist Organization that had "claimed responsibility for the attack." Estate of Klieman, 82 F.Supp.3d at 240.

         Plaintiffs allege among other things that the PA/PLO, acting "by and through their officials, employees and agents," had "provided" other defendants "weapons, instrumentalities, permission, training, and funding for their terrorist activities," along with "safe haven and a base of operations," and encouraged certain defendants to "plan and execute acts of violence, murder and terrorism against innocent civilians in Israel, Gaza and the West Bank"-including the attack that killed Klieman. Compl. ¶ 40; see also Compl. ¶¶ 41-49. Besides asserting various tort claims, plaintiffs alleged violations of the ATA, 18 U.S.C. §§ 2332, 2333, and 2339A. See Compl. ¶¶ 50-60. Section 2333 creates a cause of action for "[a]ny 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, survivors, or heirs." 18 U.S.C. § 2333(a); see id. § 2331(1) (defining "international terrorism"). And § 2333(d)(2) creates liability for persons who have aided or abetted, or conspired with a designated foreign terrorist organization (such as the Al Aqsa Martyrs Brigade) in the commission of terrorist acts.

         Defendants moved in May 2006 to dismiss the case for lack of personal jurisdiction, asserting among other problems that they had insufficient "minimum contacts" with the United States. See Defs.' Mot. to Dismiss for Lack of Personal Jurisdiction 3 (May 30, 2006), ECF No. 55. As to the PA/PLO, the district court initially ruled, in December 2006, that it could exercise general jurisdiction over these defendants. Estate of Klieman v. Palestinian Auth., 467 F.Supp.2d 107, 113 (D.D.C. 2006). In April 2008, it denied defendants' motion for reconsideration of that decision. Mem. Op. and Order (Apr. 24, 2008), ECF No. 85. Fact discovery proceeded until 2013.

         In February 2014, defendants filed a motion for reconsideration of the 2006 and 2008 rulings, invoking the requirements for general personal jurisdiction set forth in Daimler, 571 U.S. at 137. See Defs.' Mot. for Reconsideration (Feb. 5, 2014), ECF No. 233. The district court agreed to reconsider the matter. It also embraced defendants' jurisdictional argument, finding that the PA/PLO are not "at home" in the United States, as required for purposes of general jurisdiction under Daimler. It then found unpersuasive plaintiffs' theory of specific jurisdiction and denied their request for jurisdictional discovery. As the PA/PLO had been the "sole remaining defendants," the district court dismissed the case. Estate of Klieman, 82 F.Supp.3d at 250.

         Following the roadmap laid out above, we affirm.

         * * *

         The due process limits on judicial exercise of personal jurisdiction over non-resident defendants take two forms: "general or all-purpose jurisdiction, and specific or conduct-linked jurisdiction." Daimler, 571 U.S. at 122. General jurisdiction licenses a court "to hear any and all claims against" a defendant, Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)-no matter where arising. Specific jurisdiction permits a court only to hear disputes that "aris[e] out of or relat[e] to the defendant's contacts with the forum." Daimler, 571 U.S. at 127 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)).

         General jurisdiction entails a relatively demanding standard-reflecting its plenary reach over a defendant's affairs. "A court may assert general jurisdiction over foreign . . . corporations to hear any and all claims against them when their affiliations with the [forum] are so 'continuous and systematic' as to render them essentially at home in the forum . . . ." Daimler, 571 U.S. at 127 (emphasis added) (quoting Goodyear, 564 U.S. at 919). The upshot is that, absent exceptional circumstances, see, e.g., Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952), general jurisdiction will lie only where an entity is formally incorporated or maintains its principal place of business, see BNSF Ry. Co. v. Tyrrell, 137 S.Ct. 1549, 1558 (2017); Daimler, 571 U.S. at 138-39 & n.19.

         Specific jurisdiction's more limited scope justifies a less onerous standard. First, a defendant need not be "at home" in the forum. Second, unlike with general jurisdiction, minimum contacts must stem from or relate to conduct giving rise to the suit. Plaintiffs must establish a relationship among "the defendant, the forum, and the litigation." Walden v. Fiore, 571 U.S. 277, 291 (2014) (quoting Calder v. Jones, 465 U.S. 783, 788 (1984)). More specifically, for a court "to exercise [specific] jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum." Id. at 284 (emphases added).

         Where, as here, a claim arises under federal law and, as the parties agree, a "defendant is not subject to jurisdiction in any state's court of general jurisdiction," Fed.R.Civ.P. 4(k)(2)(A); see Estate of Klieman, 82 F.Supp.3d at 244, personal jurisdiction may be asserted under Rule 4(k)(2), "which functions as a federal long-arm statute," id. Besides proper service of process, it requires only that "exercising jurisdiction [be] consistent with the United States Constitution and laws." Fed.R.Civ.P. 4(k)(2)(B); see Mwani v. bin Laden, 417 F.3d 1, 10-11 (D.C. Cir. 2005). With that requirement met, the relevant forum is "the United States as a whole." Mwani, 417 F.3d at 11; accord, e.g., Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 6 (1st Cir. 2018).

         * * *

         In the wake of Daimler, defendants moved for reconsideration of the court's 2006 and 2008 rulings on personal jurisdiction. The district court granted the request, and plaintiffs now object.

         We review the district court's decision to reconsider the issue for abuse of discretion. See, e.g., Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 225 (D.C. Cir. 2011); accord Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 341 n.9 (D.C. Cir. 1991) ("[T]he abuse of discretion standard ordinarily applies to a district judge's decision whether to consider a new theory raised on motion for reconsideration."). The district court divided the matter into a segment on the propriety of reconsideration vel non and the plaintiffs' claim of waiver or forfeiture. We address both issues, but in the reverse order.

         Although the PA/PLO raised its personal jurisdiction defense in a pre-answer motion under Rule 12(b)(2), thereby avoiding forfeiture under Rule 12(h)(1), the plaintiffs argue that defendants' failure to raise the claim promptly after the Supreme Court's decision in Goodyear, 564 U.S. at 919, the precursor of Daimler, waived or forfeited the personal jurisdiction defense. See Klieman Br. 17-20; see also Pls.' Opp'n to Defs.' Mot. to Strike 3 (Nov. 2, 2018), Dkt. No. 1758524.

         Plaintiffs point out that "more than 250 federal court cases" have "discussed Goodyear's 'at home' standard, including eighteen circuit court cases and three cases in this District." Klieman Br. 24 (quoting Gilmore v. Palestinian Interim Self-Gov't Auth., 8 F.Supp.3d 9, 16 (D.D.C. 2014), aff'd, 843 F.3d 958 (D.C. Cir. 2016)). They note, too, that defense counsel in this litigation at the time of Goodyear had invoked the "at-home" language on behalf of the PA/PLO in other lawsuits shortly after Goodyear was decided-as well as in 2013. Id. at 25. Defendants' wait till 2014 to file the motion, plaintiffs conclude, constitutes undue delay. Further, they say the delay was prejudicial because the motion wasn't filed until after fact discovery had closed. Id. at 21, 30. As plaintiffs see it, they were, in effect, precluded from taking discovery to support their specific jurisdiction theory, since at the time they had (reasonably) relied on the district court's prior decision confirming personal jurisdiction. See id. at 12, 20-21, 36.

         Defendants respond that Goodyear, and this circuit's post-Goodyear but pre-Daimler cases, show sufficient room for nuance as to the status and reach of Goodyear's "at-home" language that it was not unreasonable to seek reconsideration only after Daimler. And they argue that the timing of their motion was not prejudicial. See PA/PLO Br. 24-27.

         In finding the motion for reconsideration not barred by delay, the district court acknowledged that Goodyear had introduced the "at-home" language, but argued that "the reach of this language was not immediately clear," citing the 2013 supplement of a leading procedure treatise for the view that, "[i]f the Goodyear opinion stands for anything . . . it simply reaffirms that defendants must have continuous and systematic contacts with the forum in order to be subject to general jurisdiction." Estate of Klieman, 82 F.Supp.3d at 243. The court believed that Goodyear's full import as a departure from laxer standards was "appreciated" only after Daimler issued in 2014. Id. Defendants thus did not proceed with "undue delay." And the court noted that neither plaintiffs nor the court could identify a case in which a similar motion was denied on grounds of "delay in identifying intervening case law." Id.

         We see no abuse of discretion in the ruling on forfeiture (which the district court styles as a "waiver" analysis). On the one hand, in light of in-circuit cases elaborating on the "at-home" doctrine pre-Daimler-and defense counsel's arguments on behalf of PA/PLO in other suits-there is some force to plaintiffs' argument that defendants' delay was unjustifiable. But a few points are dispositive in favor of defendants' view. First, as a general matter, a district court has leeway "always" to "reconsider[]" interlocutory orders not subject to the law of the case doctrine "prior to final judgment." "[S]o long as the court has jurisdiction over an action, it should have complete power over interlocutory orders made therein and should be able to revise them when it is consonant with equity to do so." Langevine v. Dist. of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997) (quoting Schoen v. Washington Post, 246 F.2d 670, 673 (D.C. Cir. 1957)); see also Fed.R.Civ.P. 54(b). Second, the court properly gave weight to the ...

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