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Gilmore v. Palestinian Interim Self-Government Authority

United States Court of Appeals, District of Columbia Circuit

December 13, 2016

Reuven Gilmore, individually, as the Administrator of the estate of Esh Kodesh Gilmore and as natural guardian of plaintiffs Eliana Gilmore and Dror Gilmore, et al., Appellants
v.
Palestinian Interim Self-Government Authority, also known as Palestinian National Authority, also known as Palestinian Authority, et al., Appellees

          Argued September 14, 2016

         Appeal from the United States District Court for the District of Columbia (No. 1:01-cv-00853)

          Kent A. Yalowitz argued the cause for appellants. With him on the briefs were Robert J. Tolchin and Meir Katz.

          Mitchell R. Berger argued the cause for appellees The Palestinian Authority and Palestine Liberation Organization. With him on the brief were Pierre H. Bergeron, John A. Burlingame, Alexandra E. Chopin, and Gassan A. Baloul.

          Before: Griffith and Wilkins, Circuit Judges, and Silberman, Senior Circuit Judge.

          OPINION

          WILKINS, CIRCUIT JUDGE.

         Esh Kodesh Gilmore ("Gilmore"), a United States national, was killed in a shooting attack in Jerusalem on October 30, 2000. His family members and estate (collectively, "Appellants") filed suit against the Palestinian Interim Self-Government Authority ("PA") and the Palestine Liberation Organization ("PLO") (collectively, "Appellees") asserting claims under the Anti-Terrorism Act, 18 U.S.C. § 2333, and related common law theories.

         After years of litigation, the District Court granted summary judgment in favor of Appellees. Appellants challenge the judgment, along with the vacatur of Appellees' defaults and the denial of Appellants' motion to compel the production of intelligence materials. Appellees challenge the District Court's denial of a motion for judgment on the pleadings for lack of personal jurisdiction. We have jurisdiction to review the final decisions of the District Court under 28 U.S.C. § 1291. For the reasons set forth below, we affirm each of the District Court's challenged orders.

         I.

         Gilmore was a private security guard at an East Jerusalem branch office of the National Insurance Institute of Israel. On October 30, 2000, he was shot and killed while on duty. The State of Israel has not prosecuted or convicted anyone in connection with the shooting.

         Appellants filed suit against Appellees and individual defendants on April 18, 2001. Appellees "failed to plead or otherwise defend th[e] action, " so default was entered against them on December 20, 2001. J.A. 85. A month and a half later, Appellees moved to vacate the default. Appellees and individual defendants also moved to dismiss, arguing (1) the suit was a politically-motivated attack on the PA and therefore non-justiciable, (2) "Palestine [was] a state under U.S. and international law" and therefore Appellees were entitled to sovereign immunity, and (3) "[p]ersonal [j]urisdiction [was] [l]acking [o]ver the [i]ndividual [d]efendants." J.A. 85.9-85.31. The District Court vacated the default "in light of the strong preference in this jurisdiction for rulings on the merits." J.A. 86. For a variety of reasons, however, the District Court did not rule on the motion to dismiss until March 7, 2006, when it granted the motion as to the individual defendants but denied the motion as to Appellees.

         After the ruling, Appellees failed to file a timely answer. The District Court again entered default against Appellees on January 29, 2007. Over the summer of 2007, the District Court held damages hearings at which Gilmore's family testified. On November 15, 2007, Appellees moved to vacate the second default and filed an answer. In a declaration submitted with the motion, the PA's Prime Minister, Salam Fayyad, explained that he "became aware" of a letter from U.S. Secretary of State Condoleezza Rice, which encouraged Appellees to "respond to U.S. legal proceedings in a good faith and a timely manner." Decl. of Salam Fayyad ¶ 11, J.A. 130. Prime Minister Fayyad assured the District Court that he "instructed new counsel that [Appellees] will participate fully in this and other litigation, in a cooperative manner, including complete participation in the discovery process." Id. ¶ 13, J.A. 130. On December 28, 2009, the District Court vacated the second default and, to mitigate prejudice to Appellants, ordered Appellees to: (1) reimburse Appellants for attorneys' fees and costs incurred as a result of the default, (2) stipulate that Appellants "need not testify again and that their testimony from the damages hearing may be read into the trial record, " and (3) post a $1 million bond. J.A. 155-174.

         Following years of discovery, Appellees submitted a privilege log to Appellants on March 4, 2013. The log disclosed twenty-five pages of material generated by the PA's intelligence agency, the General Intelligence Services ("GIS"), which were withheld under the state-secrets and law-enforcement privileges. Appellants moved to compel the production of those materials, arguing principally that Appellees should produce the GIS materials, and alternatively that the District Court should "conduct an in camera review of the documents to determine whether any privileges apply." J.A. 240-258. At a status conference, Appellees argued that ex parte briefing would need to accompany in camera review because it would be "very difficult for [the District Court] to review the documents and reach an assessment of them without additional information that should not be disclosed publically or to [Appellants]." Mot. Hr'g Tr. 14:19-24, J.A. 296. The District Court subsequently ordered Appellees to file, sealed and ex parte, the GIS materials and "an explanatory Memorandum of those documents, not to exceed 10 pages." J.A. 282. On June 6, 2013, following in camera review aided by Appellees' ex parte briefing, the District Court denied Appellants' motion to compel the production of the twenty-five pages of GIS materials. The District Court also denied Appellants' motion to unseal the memorandum submitted ex parte by Appellees.

         Appellees subsequently moved for summary judgment, arguing that at the close of fact discovery, Appellants had no admissible evidence linking Gilmore's murder to any particular person, let alone Appellees. Appellants argued that Gilmore was killed by Muhanad Abu Halawa ("Halawa"), a deceased former soldier in the PA's security apparatus known as "Force 17, " and that Appellees were vicariously liable for Halawa's actions. In support of that theory, Appellants proffered the following evidence:

• Two statements published online by the Israel Ministry of Foreign Affairs;
• A passage from a non-fiction book entitled The Seventh War, which recounted a prison interview that implicated Halawa;
• A statement by one of Halawa's associates, which was written and signed while in the custody of Israeli police;
• The testimony of Halawa's colleague during the trial of Halawa's supervisor; and
• An expert report authored by a former intelligence officer of the Israel Defense Forces.

         The District Court declared this evidence inadmissible, and granted Appellees' motion for summary judgment.

         II.

         Appellees urge this Court to "affirm the judgment below on the alternative ground that the court below lacked personal jurisdiction over [them]." Appellees' Br. at 52. We address this argument first. See Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102 (1998)) ("[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)."). We conclude that Appellees have waived their challenges to personal jurisdiction.

         "It is . . . elementary that a defense of . . . lack of personal (as opposed to subject matter) jurisdiction is waived unless the defense is asserted by a pre-answer motion (i.e., Rule 12(b)) or in a responsive pleading, i.e., the answer or a timely amendment thereto." Chatman-Bey v. Thornburgh, 864 F.2d 804, 813 (D.C. Cir. 1988) (en banc) (citing Fed.R.Civ.P. 12(h)(1), and 5C Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 1388 (2d ed. 1969)).

         In their pre-answer motion, Appellees argued that "Palestine [was] a state under U.S. and international law" and, therefore, they were entitled to sovereign immunity under the Foreign Sovereign Immunities Act ("FSIA"). J.A. 85.24. Appellees now raise a constitutional personal-jurisdiction defense, which they argue was preserved by their invocation of the FSIA. At oral argument, Appellees insisted that "a sovereign immunity challenge is a challenge to both personal jurisdiction and subject matter jurisdiction, " and a "substantial jurisdictional challenge" should not be deemed waived just "because the motion said 'sovereign immunity' and did not articulate the words 'personal jurisdiction.'" Oral Arg. at 22:50-23:45.

         This argument is foreclosed by Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438 (D.C. Cir. 1990). In Foremost-McKesson, Iran went a step further than Appellees: it expressly argued that "[b]ecause under the FSIA personal jurisdiction cannot exist unless there is subject-matter jurisdiction, . . . the Court also lacks personal jurisdiction, " id. at 453; in other words, Iran did "articulate the words 'personal jurisdiction.'" This Court, however, rejected Iran's argument because statutory and constitutional grounds for personal jurisdiction are different - a court must have both to hear a case. Accordingly, we held that a "defense resting on personal jurisdiction involv[ing] a statutory claim" does not preserve "the separate constitutional ground for a claim of lack of in personam jurisdiction." Id. This reasoning applies with equal force here: in their 2002 motion to dismiss, Appellees' "only defense resting on personal jurisdiction involved" the FSIA and, therefore, they have waived "the separate constitutional ground for a claim of lack of in personam jurisdiction." Id.

         Appellees also argue that their personal-jurisdiction defense was not "available" to them until the Supreme Court's decision in Daimler AG v. Bauman, 134 S.Ct. 746 (2014). "[A] party is only required to consolidate Rule 12 defenses and objections that are 'then available to the party.'" 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1388 (3d ed. 2014) (quoting Fed.R.Civ.P. 12(g)). A defense is "available" unless "its legal basis did not exist at the time of the answer or pre-answer motion, or the complaint does not contain facts sufficient to indicate that a defense was possible." Chatman-Bey, 864 F.2d at 813 n.9 (citations omitted). At the time of Appellees' pre-answer motion in 2002, the "legal basis" for their personal-jurisdiction defense did exist; there was no Supreme Court or in-circuit precedent rendering the ...


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