United States Court of Appeals, District of Columbia Circuit
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
December 13, 2018
from the United States District Court for the District of
Columbia (No. 1:04-cv-01173)
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
Before: Garland, Chief Judge, Katsas, Circuit Judge, and
Williams, Senior Circuit Judge.
WILLIAMS, SENIOR CIRCUIT JUDGE
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
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
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.
* * *
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.
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.
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.
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.
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
the roadmap laid out above, we affirm.
* * *
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)).
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 &
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).
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).
* * *
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.
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.
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.
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.
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.
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.
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 ...