Sokolow v. Palestine Liberation Org., No. 15-3135 (2d Cir. 2016)

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Justia Opinion Summary

Eleven American families filed suit against the PLO and the PA under the Anti-Terrorism Act (ATA), 18 U.S.C. 2333(a), for various terror attacks in Israel that killed or wounded plaintiffs or their families. A jury awarded 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. Both parties appealed. The court concluded that the minimum contacts and fairness analysis is the same under the Fifth Amendment and the Fourteenth Amendment in civil cases. On the merits, the court concluded that, pursuant to the Supreme Court's recent decision in Daimler, the district court could not properly exercise general personal jurisdiction over defendants. The court also concluded that, because the terror attacks in Israel at issue here were not expressly aimed at the United States and because the deaths and injuries suffered by the American plaintiffs in these attacks were “random [and] fortuitous” and because lobbying activities regarding American policy toward Israel are insufficiently “suit-related conduct” to support specific jurisdiction, the court lacks specific jurisdiction over these defendants. Therefore, the court vacated the judgment and remanded for the district court with instructions to dismiss the case for want of jurisdiction. The court did not consider defendants' other arguments on appeal or plaintiffs' cross-appeal, all of which are now moot.

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15-3135(L) Sokolow v. Palestine Liberation Organization UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________ August Term, 2015 Argued: April 12, 2016 Decided: August 31, 2016 Docket Nos. 15-3135-cv(L); 15-3151-cv(XAP) ____________________________________ 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 (“DINA”) CARTER, SHAUN COFFEL, DIANNE COULTER MILLER, ROBERT L COULTER, JR., ROBERT L. COULTER, SR., INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JANIS RUTH COULTER, CHANA BRACHA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG, ELIEZER SIMCHA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG, ESTHER ZAHAVA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG, KAREN GOLDBERG, INDIVIDUALLY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF STUART SCOTT GOLDBERG/NATURAL GUARDIAN OF PLAINTIFFS CHANA BRACHA GOLDBERG, ESTHER ZAHAVA GOLDBERG, YITZHAK SHALOM GOLDBERG, SHOSHANA MALKA GOLDBERG, ELIEZER SIMCHA GOLDBERG, YAAKOV MOSHE GOLDBERG, TZVI YEHOSHUA GOLDBERG, SHOSHANA MALKA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG, TZVI YEHOSHUA GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG, YAAKOV MOSHE GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG, YITZHAK SHALOM GOLDBERG, MINOR, BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG, NEVENKA GRITZ, SOLE HEIR OF NORMAN GRITZ, DECEASED, Plaintiffs – Appellees - Cross-Appellants, —v.— PALESTINE LIBERATION ORGANIZATION, PALESTINIAN AUTHORITY, AKA PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY AND OR PALESTINIAN COUNCIL AND OR PALESTINIAN NATIONAL AUTHORITY, Defendants - Appellants - Cross-Appellees, YASSER ARAFAT, MARWIN BIN KHATIB BARGHOUTI, AHMED TALEB MUSTAPHA BARGHOUTI, AKA AL-FARANSI, NASSER MAHMOUD AHMED AWEIS, MAJID ALMASRI, AKA ABU MOJAHED, MAHMOUD AL-TITI, MOHAMMED ABDEL RAHMAN SALAM MASALAH, AKA ABU SATKHAH, FARAS SADAK MOHAMMED GHANEM, AKA HITAWI, MOHAMMED SAMI IBRAHIM ABDULLAH, ESTATE OF SAID RAMADAN, DECEASED, ABDEL KARIM RATAB YUNIS AWEIS, NASSER JAMAL MOUSA SHAWISH, TOUFIK TIRAWI, HUSSEIN AL-SHAYKH, SANA'A MUHAMMED SHEHADEH, KAIRA SAID ALI SADI, ESTATE OF MOHAMMED HASHAIKA, DECEASED, MUNZAR MAHMOUD KHALIL NOOR, ESTATE OF WAFA IDRIS, DECEASED, ESTATE OF MAZAN FARITACH, DECEASED, ESTATE OF MUHANAD ABU HALAWA, DECEASED, JOHN DOES, 1-99, HASSAN ABDEL RAHMAN, Defendants. ___________________________________ 2 Before: LEVAL 1 AND DRONEY, Circuit Judges, and KOELTL, District Judge.* The defendants-appellants-cross-appellees (“defendants”) 2 appeal from a judgment of the United States District Court for 3 the Southern District of New York (Daniels, J.) in favor of the 4 plaintiffs-appellees-cross-appellants (“plaintiffs”). 5 found the defendants---the Palestine Liberation Organization and 6 the Palestinian Authority---liable under the Anti-Terrorism Act 7 (“ATA”), 18 U.S.C. § 2333(a), for various terror attacks in 8 Israel that killed or wounded United States citizens. 9 awarded the plaintiffs damages of $218.5 million, an amount that A jury The jury 10 was trebled automatically pursuant to the ATA, 18 U.S.C. 11 § 2333(a), bringing the total award to $655.5 million. 12 defendants appeal, arguing that the district court lacked 13 general and specific personal jurisdiction over the defendants, 14 and, in the alternative, seek a new trial because the district 15 court abused its discretion by allowing certain testimony by two 16 expert witnesses. 17 Court to reinstate claims the district court dismissed. The The plaintiffs cross-appeal, asking this 18 We vacate the judgment of the district court and remand the 19 case with instructions to dismiss the action because the federal 20 courts lack personal jurisdiction over the defendants with * The Honorable John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation. 3 1 respect to the claims in this action. 2 remaining issues. 3 ______________ We do not reach the 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 KENT A. YALOWITZ, Arnold & Porter, LLP, for PlaintiffsAppellees-Cross-Appellants. 23 24 25 John G. Koeltl, District Judge: 26 Liberation Organization (“PLO”) and the Palestinian Authority 27 (“PA”) (collectively, “defendants”)1 under the Anti-Terrorism Act 28 (“ATA”), 18 U.S.C. § 2333(a), for various terror attacks in 29 Israel that killed or wounded the plaintiffs-appellees-cross- 30 appellants (“plaintiffs”) or their family members.2 GASSAN 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. David 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 PlaintiffsAppellees-Cross-Appellants. James 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 PlaintiffsAppellees-Cross-Appellants. ______________ In this case, eleven American families sued the Palestine 1 While other defendants, such as Yasser Arafat, were named as defendants in the case, they did not appear, and the Judgment was entered only against the PLO and the PA. 2 The plaintiffs are United States citizens, and the guardians, family members, and personal representatives of the estates of 4 1 The defendants repeatedly argued before the District Court 2 for the Southern District of New York that the court lacked 3 personal jurisdiction over them in light of their minimal 4 presence in, and the lack of any nexus between the facts 5 underlying the plaintiffs’ claims and the United States. 6 district court (Daniels, J.) concluded that it had general 7 personal jurisdiction over the defendants, even after the 8 Supreme Court narrowed the test for general jurisdiction in 9 Daimler AG v. Bauman, 134 S. Ct. 746 (2014). The See Sokolow v. 10 Palestine Liberation Org., No. 04-cv-397 (GBD), 2014 WL 6811395, 11 at *2 (S.D.N.Y. Dec. 1, 2014); see also Sokolow v. Palestine 12 Liberation Org., No. 04-cv-397 (GBD), 2011 WL 1345086, at *7 13 (S.D.N.Y. Mar. 30, 2011). 14 After a seven-week trial, a jury found that the defendants, 15 acting through their employees, perpetrated the attacks and that 16 the defendants knowingly provided material support to 17 organizations designated by the United States State Department 18 as foreign terrorist organizations. 19 plaintiffs damages of $218.5 million, an amount that was trebled 20 automatically pursuant to the ATA, 18 U.S.C. § 2333(a), bringing 21 the total award to $655.5 million. The jury awarded the United States citizens, who were killed or injured in the terrorist attacks. 5 1 On appeal, the defendants seek to overturn the jury’s 2 verdict by arguing that the United States Constitution precludes 3 the exercise of personal jurisdiction over them. 4 alternative, the defendants seek a new trial, arguing that the 5 district court abused its discretion by allowing certain 6 testimony by two expert witnesses. 7 asking this Court to reinstate non-federal claims that the 8 district court dismissed, and reinstate the claims of two 9 plaintiffs for which the district court found insufficient 10 In the The plaintiffs cross-appeal, evidence to submit to the jury. 11 We conclude that the district court erred when it concluded 12 it had personal jurisdiction over the defendants with respect to 13 the claims at issue in this action. 14 judgment of the district court and REMAND the case to the 15 district court with instructions to DISMISS the case for want of 16 personal jurisdiction. 17 defendants’ other arguments on appeal or the plaintiffs’ cross- 18 appeal, all of which are now moot. 19 I. 20 A. 21 Therefore, we VACATE the Accordingly, we do not consider the The PA was established by the 1993 Oslo Accords as the 22 interim and non-sovereign government of parts of the West Bank 23 and the Gaza Strip (collectively referred to here as 24 “Palestine”). The PA is headquartered in the city of Ramallah 6 1 in the West Bank, where the Palestinian President and the PA’s 2 ministers reside. 3 The PLO was founded in 1964. At all relevant times, the 4 PLO was headquartered in Ramallah, the Gaza Strip, and Amman, 5 Jordan. Because the Oslo Accords limit the PA’s authority to 6 Palestine, the PLO conducts Palestine’s foreign affairs. 7 During the relevant time period for this action, the PLO 8 maintained over 75 embassies, missions, and delegations around 9 the world. The PLO is registered with the United States 10 Government as a foreign agent. 11 offices in the United States: a mission to the United States in 12 Washington, D.C. and a mission to the United Nations in New York 13 City. 14 between 2002 and 2004, including two employees of the PA, 15 although not all at the same time.3 16 York missions engaged in diplomatic activities during the 17 relevant period. 18 substantial commercial presence in the United States.” 19 2011 WL 1345086, at *4. 20 purchased office supplies, paid for certain living expenses for 21 Hassan Abdel Rahman, the chief PLO and PA representative in the The PLO has two diplomatic The Washington, D.C. mission had fourteen employees The Washington, D.C. and New The Washington, D.C. mission “had a Sokolow, It used dozens of telephone numbers, 3 The district court concluded that “the weight of the evidence indicates that the D.C. office simultaneously served as an office for the PLO and the PA.” Sokolow, 2011 WL 1345086, at *3. 7 1 United States, and engaged in other transactions. 2 also retained a consulting and lobbying firm through a multi- 3 year, multi-million-dollar contract for services from about 1999 4 to 2004. 5 Palestinian cause in speeches and media appearances. 6 Id. Id. The PLO The Washington, D.C. mission also promoted the Id. Courts have repeatedly held that neither the PA nor the PLO 7 is a “state” under United States or international law. 8 Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 47-48 (2d Cir. 9 1991) (holding the PLO, which had no defined territory or See 10 permanent population and did not have capacity to enter into 11 genuine formal relations with other nations, was not a “state” 12 for purposes of the Foreign Sovereign Immunities Act); Estates 13 of Ungar v. Palestinian Auth., 315 F. Supp. 2d 164, 178-86 14 (D.R.I. 2004) (holding that neither the PA nor the PLO is a 15 state entitled to sovereign immunity under the Foreign Sovereign 16 Immunities Act because neither entity has a defined territory 17 with a permanent population controlled by a government that has 18 the capacity to enter into foreign relations); see also Knox v. 19 Palestine Liberation Org., 306 F. Supp. 2d 424, 431 (S.D.N.Y. 20 2004) (holding that neither the PLO nor the PA was a “state” for 21 purposes of the Foreign Sovereign Immunities Act). 22 While the United States does not recognize Palestine or the 23 PA as a sovereign government, see Sokolow v. Palestine 24 Liberation Org., 583 F. Supp. 2d 451, 457-58 (S.D.N.Y. 2008) 8 1 (“Palestine, whose statehood is not recognized by the United 2 States, does not meet the definition of a ‘state,’ under United 3 States and international law . . . .”) (collecting cases), the 4 PA is the governing authority in Palestine and employs tens of 5 thousands of security personnel in Palestine. 6 PA’s Minister of Finance, the “PA funds conventional government 7 services, including developing infrastructure; public safety and 8 the judicial system; health care; public schools and education; 9 foreign affairs; economic development initiatives in According to the 10 agriculture, energy, public works, and public housing; the 11 payment of more than 155,000 government employee salaries and 12 related pension funds; transportation; and, communications and 13 information technology services.” 14 B. 15 The plaintiffs sued the defendants in 2004, alleging 16 violations of the ATA for seven terror attacks committed during 17 a wave of violence known as “the al Aqsa Intifada,” by 18 nonparties who the plaintiffs alleged were affiliated with the 19 defendants. 20 attacks.4 At trial, the plaintiffs presented evidence of the 21 following attacks. The jury found the plaintiffs liable for six of the 4 The district court found claims relating to an attack on January 8, 2001 that wounded Oz Guetta speculative and did not allow those claims to proceed to the jury. The plaintiffs argue that this Court should reinstate the Guetta claims. Because we 9 1 i. 2 On January 22, 2002, a PA police officer opened fire on a January 22, 2002: Jaffa Road Shooting 3 pedestrian mall in Jerusalem. 4 people who were on Jaffa Street,” at a nearby bus stop and 5 aboard a bus that was at the stop, and at people in the stores 6 nearby “with the aim of causing the death of as many people as 7 possible.” 8 forty-five others before he was killed by police. 9 was carried out, according to trial evidence, by six members of He shot “indiscriminately at the The shooter killed two individuals and wounded The attack 10 the PA police force who planned the shooting. Two of the 11 plaintiffs were injured. 12 ii. 13 On January 27, 2002, a PA intelligence informant named Wafa January 27, 2002: Jaffa Road Bombing 14 Idris detonated a suicide bomb on Jaffa Road in Jerusalem, 15 killing herself and an Israeli man and seriously wounding four 16 of the plaintiffs, including two children. 17 at trial showed that the bombing was planned by a PA 18 intelligence officer who encouraged the assailant to conduct the 19 suicide bombing, even after the assailant had doubts about doing 20 so. Evidence presented 21 22 conclude that there is no personal jurisdiction over the defendants for the ATA claims, it is unnecessary to reach this issue. 10 1 iii. March 21, 2002: King George Street Bombing 2 On March 21, 2002, Mohammed Hashaika, a former PA police 3 officer, detonated a suicide bomb on King George Street in 4 Jerusalem. 5 because it was “full of people during the afternoon.” 6 set-off the explosion while in a crowd “with the aim of causing 7 the deaths of as many civilians as possible.” 8 were grievously wounded, including a seven-year-old American 9 boy. 10 Hashaika’s co-conspirators chose the location Hashaika Two plaintiffs Evidence presented at trial showed that a PA intelligence officer named Abdel Karim Aweis orchestrated the attack. 11 iv. 12 On June 19, 2002, a seventeen-year-old Palestinian man June 19, 2002: French Hill Bombing 13 named Sa’id Awada detonated a suicide bomb at a bus stop in the 14 French Hill neighborhood of Jerusalem. 15 militant faction of the PLO’s Fatah party called the Al Aqsa 16 Martyr Brigades (“AAMB”), which the United States Department of 17 State had designated as a “foreign terrorist organization” 18 (“FTO”). 19 including an eighteen-year-old plaintiff who was stepping off a 20 bus when the bomb exploded. Awada was a member of a The bombing killed several people and wounded dozens, 21 v. 22 On July 31, 2002, military operatives of Hamas---a United July 31, 2002: Hebrew University Bombing 23 States-designated FTO---detonated a bomb hidden in a black cloth 24 bag that was packed with hardware nuts in a café at Hebrew 11 1 University in Jerusalem. 2 four United States citizens, whose estates bring suit here. The explosion killed nine, including 3 vi. 4 On January 29, 2004, in an AAMB attack, a PA police officer January 29, 2004: Bus No. 19 Bombing 5 named Ali Al-Ja’ara detonated a suicide vest on a crowded bus, 6 Bus No. 19 traveling from Malha Mall toward Paris Square in 7 central Jerusalem. 8 including one of the plaintiffs. 9 evidence submitted at trial, was to “caus[e] the deaths of a 10 11 12 13 The suicide bombing killed eleven people, The bomber’s aim, according to large number of individuals.” C. In 2004, the plaintiffs filed suit in the Southern District 14 of New York. 15 for lack of personal jurisdiction in July 2007. 16 court denied the motion, subject to renewal after jurisdictional 17 discovery. 18 district court denied the defendants’ renewed motion, holding 19 that the court had general personal jurisdiction over the 20 defendants. 21 The defendants first moved to dismiss the claims The district After the close of jurisdictional discovery, the See Sokolow, 2011 WL 1345086, at *7. The district court concluded, as an initial matter, that 22 the service of process was properly effected by serving the 23 Chief Representative of the PLO and the PA, Hassan Abdel Rahman, 24 at his home in Virginia, pursuant to Federal Rule of Civil 25 Procedure 4(h)(1)(B) (providing that a foreign association “must 12 1 be served[ ] . . . in a judicial district of the United States . 2 . . by delivering a copy of the summons and of the complaint to 3 an officer, a managing or general agent . . . .”); see also 18 4 U.S.C. § 2334(a) (providing for nationwide service of process 5 and venue under the ATA); Sokolow, 2011 WL 1345086, at *2. 6 The district court then engaged in a two-part analysis to 7 determine whether the exercise of personal jurisdiction 8 comported with the due process protections of the United States 9 Constitution. First, it determined whether the defendants had 10 sufficient minimum contacts with the forum such that the 11 maintenance of the action did not offend traditional notions of 12 fair play and substantial justice. 13 *2 (citing Frontera Res. Azerbaijan Corp. v. State Oil Co. of 14 Azerbaijan Republic, 582 F.3d 393, 396 (2d Cir. 2009)). 15 Sokolow, 2011 WL 1345086, at The district court distinguished between specific and 16 general personal jurisdiction---specific jurisdiction applies 17 where the defendants’ contacts are related to the litigation and 18 general jurisdiction applies where the defendants’ contacts are 19 so substantial that the defendants could be sued on all claims, 20 even those unrelated to contacts with the forum---and found that 21 the district court had general jurisdiction over the defendants. 22 Id. at *3. 23 “substantial commercial presence in the United States,” in 24 particular “a fully and continuously functional office in The court considered what it deemed the defendants’ 13 1 Washington, D.C.,” bank accounts and commercial contracts, and 2 “a substantial promotional presence in the United States, with 3 the D.C. office having been permanently dedicated to promoting 4 the interests of the PLO and the PA.” 5 Id. at *4. The district court concluded that activities involving the 6 defendants’ New York office were exempt from jurisdictional 7 analysis under an exception for United Nations’ related activity 8 articulated in Klinghoffer, 937 F.2d at 51-52 (UN participation 9 not properly considered basis for jurisdiction); see Sokolow, 10 2011 WL 1345086, at *5. 11 activities involving the Washington, D.C. mission were not 12 exempt from analysis and provided “a sufficient basis to 13 exercise general jurisdiction over the Defendants.” 14 (“The PLO and the PA were continuously and systematically 15 present in the United States by virtue of their extensive public 16 relations activities.”). 17 The district court held that the Id. at *6 Next, the district court considered “‘whether the assertion 18 of personal jurisdiction comports with “traditional notions of 19 fair play and substantial justice”---that is, whether it is 20 reasonable under the circumstances of the particular case.’” 21 Id. (quoting Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 22 F.3d 560, 568 (2d Cir. 1996)). 23 exercise of jurisdiction did not offend “traditional notions of 24 fair play and substantial justice,” pursuant to the standard The court found that the 14 1 articulated by International Shoe Co. v. Washington, 326 U.S. 2 310, 316 (1945), and its progeny. 3 at *6-7. 4 inherent interest of the United States and Plaintiffs in 5 litigating ATA claims in the United States,” and that the 6 defendants “failed to identify an alternative forum where 7 Plaintiffs’ claims could be brought, and where the foreign court 8 could grant a substantially similar remedy.” See Sokolow, 2011 WL 1345086, The district court concluded that “[t]here is a strong Id. at *7. 9 In January 2014, after the Supreme Court had significantly 10 narrowed the general personal jurisdiction test in Daimler, 134 11 S. Ct. 746, the defendants moved for reconsideration of the 12 denial of their motion to dismiss. 13 On April 11, 2014, the district court denied the 14 defendants’ motions for reconsideration, ruling that Daimler did 15 not compel dismissal. 16 defendants’ motions to certify the jurisdictional issue for an 17 interlocutory appeal. 18 defendants renewed their jurisdictional argument in their 19 motions for summary judgment, arguing that this Court’s decision 20 in Gucci America, Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 21 2014), altered the controlling precedent in this Circuit, 22 requiring dismissal of the case. 23 at *1. 24 personal jurisdiction over the defendants, describing the action The district court also denied the See Sokolow, 2014 WL 6811395, at *1. The See Sokolow, 2014 WL 6811395, The district court concluded that it still had general 15 1 as presenting “‘an exceptional case,’” id. at *2, of the kind 2 discussed in Daimler, 134 S. Ct. at 761 n.19, and Gucci, 768 3 F.3d at 135. 4 The district court held that “[u]nder both Daimler and 5 Gucci, the PA and PLO’s continuous and systematic business and 6 commercial contacts within the United States are sufficient to 7 support the exercise of general jurisdiction,” and that the 8 record before the court was “insufficient to conclude that 9 either defendant is ‘at home’ in a particular jurisdiction other 10 11 than the United States.” Sokolow, 2014 WL 6811395, at *2. Following the summary judgment ruling, the defendants 12 sought mandamus on the personal jurisdiction issue. 13 denied the defendants’ petition. 14 Org., Palestinian Authority, No. 14-4449 (2d Cir. Jan. 6, 2015) 15 (summary order). 16 This Court See In re Palestine Liberation The case proceeded to trial in January 2015. During the 17 trial, the defendants introduced evidence about the PA’s and 18 PLO’s home in Palestine. 19 terrorist attacks occurred in the vicinity of Jerusalem. 20 plaintiffs did not allege or submit evidence that the plaintiffs 21 were targeted in any of the six attacks at issue because of 22 their United States citizenship or that the defendants engaged 23 in conduct in the United States related to the attacks. The trial evidence showed that the 16 The 1 At the conclusion of plaintiffs’ case in chief, the 2 defendants moved for judgment as a matter of law under Federal 3 Rule of Civil Procedure 50(a), arguing, among other grounds, 4 that the district court lacked personal jurisdiction over the 5 defendants. 6 renewed that motion at the close of all the evidence and again 7 asserted that the court lacked personal jurisdiction. 8 9 The Court denied the motion. The defendants During and immediately after trial, the District Court for the District of Columbia issued three separate decisions 10 dismissing similar suits for lack of personal jurisdiction by 11 similar plaintiffs in cases against the PA and the PLO. 12 Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d 237, 245- 13 46 (D.D.C. 2015), appeal docketed, No. 15-7034 (D.C. Cir. Apr. 14 8, 2015); Livnat v. Palestinian Auth., 82 F. Supp. 3d 19, 30 15 (D.D.C. 2015), appeal docketed, No. 15-7024 (D.C. Cir. Mar. 18, 16 2015); Safra v. Palestinian Auth., 82 F. Supp. 3d 37, 47-48 17 (D.D.C. 2015), appeal docketed, No. 15-7025 (D.C. Cir. Mar. 18, 18 2015). See 19 In light of these cases, on May 1, 2015, the defendants 20 renewed their motion to dismiss for lack of both general and 21 specific personal jurisdiction. 22 the alternative, for judgment as a matter of law or for a new 23 trial pursuant to Federal Rules of Civil Procedure 50(b) and 59. 24 The district court reviewed the decisions by the District Court The defendants also moved, in 17 1 for the District of Columbia, but, for the reasons articulated 2 in its 2014 decision and at oral argument, concluded that the 3 district court had general personal jurisdiction over the 4 defendants. 5 whether it had specific personal jurisdiction over the 6 defendants. 7 The district court did not rule explicitly on The jury found the defendants liable for all six attacks 8 and awarded the plaintiffs damages of $218.5 million, an amount 9 that was trebled automatically pursuant to the ATA, 18 U.S.C. 10 § 2333(a), bringing the total award to $655.5 million. 11 The parties engaged in post-trial motion practice not 12 relevant here, the defendants timely appealed, and the 13 plaintiffs cross-appealed. 14 II. 15 A. 16 “We review a district court’s assertion of personal 17 jurisdiction de novo.” 18 451 F.3d 89, 94 (2d Cir. 2006).5 Dynegy Midstream Servs. v. Trammochem, 5 The standard of review in this case is complicated because the issue of personal jurisdiction was raised initially on a motion to dismiss, both before and after discovery, and as a basis for Rule 50 motions at the conclusion of the plaintiffs’ case and after all the evidence was presented. This Court typically reviews factual findings in a district court’s decision on personal jurisdiction for clear error and its legal conclusions de novo. See Frontera Res., 582 F.3d at 395. In this case, the parties agree that this Court should review de novo whether the district court’s exercise of personal jurisdiction was 18 1 To exercise personal jurisdiction lawfully, three 2 requirements must be met. 3 process upon the defendant must have been procedurally proper. 4 Second, there must be a statutory basis for personal 5 jurisdiction that renders such service of process 6 effective. . . . Third, the exercise of personal jurisdiction 7 must comport with constitutional due process principles.” 8 ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59-60 9 (2d Cir. 2012) (footnotes and internal citations omitted), “First, the plaintiff’s service of Licci 10 certified question accepted sub nom. Licci v. Lebanese Canadian 11 Bank, 967 N.E.2d 697 (N.Y. 2012), and certified question 12 answered sub nom. Licci v. Lebanese Canadian Bank, 984 N.E.2d 13 893 (N.Y. 2012). 14 Constitutional due process assures that an individual will 15 only be subjected to the jurisdiction of a court where the 16 maintenance of a lawsuit does not offend “traditional notions of 17 fair play and substantial justice.” Int’l Shoe, 326 U.S. at 316 18 (internal quotation marks omitted). Personal jurisdiction is “a 19 matter of individual liberty” because due process protects the 20 individual’s right to be subject only to lawful power. 21 McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884 (2011) J. constitutional. See Pls.’ Br. at 27; Defs.’ Br. at 23. In any event, the issues relating to general jurisdiction are essentially legal questions that should be reviewed de novo. Assuming without deciding the question, we review the district court’s assertion of personal jurisdiction de novo. 19 1 (plurality opinion) (quoting Ins. Corp. of Ir. v. Compagnie des 2 Bauxites de Guinee, 456 U.S. 694, 702 (1982)). 3 The ATA provides that process “may be served in any 4 district where the defendant resides, is found, or has an agent 5 . . . .” 6 plaintiffs properly served the defendants because they served 7 the complaint, pursuant to Federal Rule of Civil Procedure 8 4(h)(1)(B) (providing that service on an unincorporated 9 association is proper if the complaint is served on a “general 10 agent” of the entity), on Hassan Abdel Rahman, who “based upon 11 the overwhelming competent evidence produced by Plaintiffs, was 12 the Chief Representative of the PLO and the PA in the United 13 States at the time of service.” Sokolow, 2011 WL 1345086, at *2.6 14 18 U.S.C § 2334(a). The district court found that the The defendants have not disputed that service was proper 15 and that there was a statutory basis pursuant to the ATA for 16 that service of process. 17 the Court is whether the third jurisdictional requirement is 18 met---whether jurisdiction over the defendants may be exercised 19 consistent with the Constitution. 20 B. 21 22 Therefore, the only question before Before we reach the analysis of constitutional due process, the plaintiffs raise three threshold issues: First, whether the 6 The district court found that the defendants are “unincorporated associations.” See Sokolow v. Palestine Liberation Org., 60 F. Supp. 3d 509, 523-24 (S.D.N.Y. 2014). 20 1 defendants waived their objections to personal jurisdiction; 2 second, whether the defendants have due process rights at all; 3 and third, whether the due process clause of the Fifth Amendment 4 to the Constitution and not the Fourteenth Amendment controls 5 the personal jurisdiction analysis in this case. 6 First, the plaintiffs argue that the defendants waived 7 their argument that the district court lacked personal 8 jurisdiction over them. The plaintiffs contend that the 9 defendants could have argued that they were not subject to 10 general jurisdiction under the “at home” test before Daimler was 11 decided because the “at home” general jurisdiction test existed 12 after Goodyear Dunlop Tire Operations, S.A. v. Brown, 564 U.S. 13 915 (2011). This argument is unavailing because this Court in 14 Gucci looked to the test in Daimler as the appropriate test for 15 general jurisdiction over a corporate entity. See Gucci, 768 16 F.3d at 135-36. 17 objection to personal jurisdiction because they repeatedly and 18 consistently objected to personal jurisdiction and invoked 19 Daimler after this Court’s decision in Gucci. 20 district court explicitly noted that the “Defendants’ motions 21 asserting lack of personal jurisdiction are not denied based on 22 a theory of waiver.” 23 (emphasis added). The defendants did not waive or forfeit their Furthermore, the Sokolow, 2014 WL 6811395, at *2 n.2 21 1 Second, the plaintiffs argue that the defendants have no 2 due process rights because the defendants are foreign 3 governments and share many of the attributes typically 4 associated with a sovereign government. 5 states do not have due process rights but receive the protection 6 of the Foreign Sovereign Immunities Act. 7 F.3d at 396-400. 8 defendants, lack due process rights, because they do not view 9 themselves as part of a sovereign and are treated as a foreign Foreign sovereign See Frontera Res., 582 The plaintiffs argue that entities, like the 10 government in other contexts. The plaintiffs do not cite any 11 cases indicating that a non-sovereign entity with governmental 12 attributes lacks due process rights. All the cases cited by the 13 plaintiffs stand for the proposition that sovereign governments 14 lack due process rights, and these cases have not been extended 15 beyond the scope of entities that are separate sovereigns, 16 recognized by the United States government as sovereigns, and 17 therefore enjoy foreign sovereign immunity. 18 While sovereign states are not entitled to due process 19 protection, see id. at 399, neither the PLO nor the PA is 20 recognized by the United States as a sovereign state, and the 21 executive’s determination of such a matter is conclusive. 22 Zivotofsky v. Kerry, 135 S. Ct. 2076, 2088 (2015); see also 23 Ungar, 315 F. Supp. 2d at 177 (“The PA and PLO’s argument must 24 fail because Palestine does not satisfy the four criteria for 22 See 1 statehood and is not a State under prevailing international 2 legal standards.”); Knox, 306 F. Supp. 2d at 431 (“[T]here does 3 not exist a state of Palestine which meets the legal criteria 4 for statehood. . . .”); accord Klinghoffer, 937 F.2d at 47 (“It 5 is quite clear that the PLO meets none of those requirements 6 [for a state].”). Because neither defendant is a state, the 7 defendants have due process rights. See O’Neill v. Asat Trust 8 Reg. (In re Terrorist Attacks on Sept. 11, 2001), 714 F.3d 659, 9 681-82 (2d Cir. 2013) (“O’Neill”) (dismissing for lack of 10 personal jurisdiction claims against charities, financial 11 institutions, and other individuals who are alleged to have 12 provided support to Osama Bin Laden and al Qaeda); Livnat, 82 F. 13 Supp. 3d at 26 (due process clause applies to the PA (collecting 14 cases)). 15 Third, the plaintiffs and amici curiae Former Federal 16 Officials argue that the restrictive Fourteenth Amendment due 17 process standards cannot be imported into the Fifth Amendment 18 and that the due process clause of the Fifth Amendment to the 19 Constitution,7 and not the Fourteenth Amendment,8 applies to the 7 The Fifth Amendment states in relevant part: “. . . nor shall any person . . . be deprived of life, liberty, or property, without due process of law . . . .” U.S. CONST. amend. V. 8 The Fourteenth Amendment states in relevant part: “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .” U.S. CONST. amend. XIV., § 1. 23 1 ATA and controls the analysis in this case. The argument is 2 particularly important in this case because the defendants rely 3 on the standard for personal jurisdiction set out in Daimler and 4 the Daimler Court explained that it was interpreting the due 5 process clause of the Fourteenth Amendment. Daimler, 134 S. Ct. 6 at 751. 7 The plaintiffs and amici argue that the Fourteenth 8 Amendment due process clause restricts state power but the Fifth 9 Amendment should be applied to the exercise of federal power. 10 Their argument is that the Fourteenth Amendment imposes stricter 11 limits on the personal jurisdiction that courts can exercise 12 because that Amendment, grounded in concepts of federalism, was 13 intended to referee jurisdictional conflicts among the sovereign 14 States. 15 restrictions because it contemplates disputes with foreign 16 nations, which, unlike States, do not follow reciprocal rules 17 and are not subject to our constitutional system. 18 McIntyre Mach., 564 U.S. at 884 (plurality opinion) (“Because 19 the United States is a distinct sovereign, a defendant may in 20 principle be subject to the jurisdiction of the courts of the 21 United States but not of any particular State. This is 22 consistent with the premises and unique genius of our 23 Constitution.”). 24 the Fourteenth and Fifth Amendments, the plaintiffs and amici The Fifth Amendment, by contrast, imposes more lenient See, e.g., J. To conflate the due process requirements of 24 1 argue, would impose a unilateral constraint on United States 2 courts, even when the political branches conclude that personal 3 jurisdiction over a defendant for extraterritorial conduct is in 4 the national interest.9 5 This Court’s precedents clearly establish the congruence of 6 due process analysis under both the Fourteenth and Fifth 7 Amendments. 8 analysis [for purposes of the court’s in personam jurisdiction] 9 is basically the same under both the Fifth and Fourteenth This Court has explained: “[T]he due process 10 Amendments. 11 Amendment the court can consider the defendant's contacts 12 throughout the United States, while under the Fourteenth 13 Amendment only the contacts with the forum state may be 14 considered.” 15 1998). 16 17 The principal difference is that under the Fifth Chew v. Dietrich, 143 F.3d 24, 28 n.4 (2d Cir. Indeed, this Court has already applied Fourteenth Amendment principles to Fifth Amendment civil terrorism cases. 9 For The plaintiffs also point to the brief filed by the United States Solicitor General in Daimler to support their argument that the due process standards for the Fifth and Fourteenth Amendments vary. However, the United States never advocated that the Fourteenth Amendment standard would be inapplicable to Fifth Amendment cases and, instead, urged the Court not to reach the issue. See Brief for the United States as Amicus Curaie Supporting Petitioner, DaimlerChrysler AG v. Bauman, 134 S. Ct. 746 (2014) (No. 11-965), 2013 WL 3377321, at *3 n.1 (“This Court has consistently reserved the question whether its Fourteenth Amendment personal jurisdiction precedents would apply in a case governed by the Fifth Amendment, and it should do so here.”). 25 1 example, in O’Neill, 714 F.3d at 673-74, this Court applied 2 Fourteenth Amendment due process cases to terrorism claims 3 brought pursuant to the ATA in federal court. See In re 4 Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 93 (2d Cir. 5 2008), abrogated on other grounds by Samantar v. Yousuf, 560 6 U.S. 305 (2010); see also Tex. Trading & Milling Corp. v. Fed. 7 Republic of Nigeria, 647 F.2d 300, 315 n.37 (2d Cir. 1981) 8 (declining to apply different due-process standards in a case 9 governed by the Fifth Amendment compared to one governed by the 10 Fourteenth Amendment), overruled on other grounds by Frontera 11 Res., 582 F.3d at 400; GSS Grp. Ltd v. Nat’l Port Auth., 680 12 F.3d 805, 816-17 (D.C. Cir. 2012) (applying Fourteenth Amendment 13 case law when considering minimum contacts under the Fifth 14 Amendment). 15 Amici Federal Officials concede that our precedents settle 16 the issue, but they argue those cases were wrongly decided and 17 urge us not to follow them. We decline the invitation to upend 18 settled law.10 19 20 Accordingly, we conclude that the minimum contacts and fairness analysis is the same under the Fifth Amendment and the 10 Amici argue for “universal”---or limitless---personal jurisdiction in terrorism cases. This Court has already rejected that suggestion. See United States v. Yousef, 327 F.3d 56, 10708 (2d Cir. 2003) (per curiam) (“[T]errorism---unlike piracy, war crimes, and crimes against humanity---does not provide a basis for universal jurisdiction.”). 26 1 Fourteenth Amendment in civil cases and proceed to analyze the 2 jurisdictional question. 3 4 III. Pursuant to the due process clauses of the Fifth and 5 Fourteenth Amendments, there are two parts to the due process 6 test for personal jurisdiction as established by International 7 Shoe, 326 U.S. 310, and its progeny: the “minimum contacts” 8 inquiry and the “reasonableness” inquiry. 9 Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d See Bank Brussels 10 Cir. 2002) (Sotomayor, J.). 11 requires that the court determine whether a defendant has 12 sufficient minimum contacts with the forum to justify the 13 court’s exercise of personal jurisdiction over the defendant. 14 See Daimler, 134 S. Ct. at 754; Calder v. Jones, 465 U.S. 783, 15 788 (1984); Int’l Shoe, 326 U.S. at 316; Metro. Life Ins., 84 16 F.3d at 567-68. 17 to determine whether the assertion of personal jurisdiction over 18 the defendant comports with “‘traditional notions of fair play 19 and substantial justice’” under the circumstances of the 20 particular case. 21 564 U.S. at 923); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 22 476-78 (1985). 23 24 The minimum contacts inquiry The reasonableness inquiry requires the court Daimler, 134 S. Ct. at 754 (quoting Goodyear, International Shoe distinguished between two exercises of personal jurisdiction: general jurisdiction and specific 27 1 jurisdiction. 2 issue of general jurisdiction. We conclude that general 3 jurisdiction is absent; the question remains whether the court 4 may nonetheless assert its jurisdiction under the doctrine of 5 specific jurisdiction. 6 The district court in this case ruled only on the A court may assert general personal jurisdiction over a 7 foreign defendant to hear any and all claims against that 8 defendant only when the defendant’s affiliations with the State 9 in which suit is brought “are so constant and pervasive ‘as to 10 render [it] essentially at home in the forum State.’” 11 134 S. Ct. at 751 (quoting Goodyear, 564 U.S. at 919); see also 12 Goodyear, 564 U.S. at 924. 13 jurisdiction has become the centerpiece of modern jurisdiction 14 theory, while general jurisdiction [has played] a reduced 15 rule.’” Daimler, 134 S. Ct. at 755 (quoting Goodyear, 564 U.S. 16 at 925). Accordingly, there are “few” Supreme Court opinions 17 over the past half-century that deal with general jurisdiction. 18 Id. Daimler, “Since International Shoe, ‘specific 19 “Specific jurisdiction, on the other hand, depends on an 20 affiliation between the forum and the underlying controversy, 21 principally, activity or an occurrence that takes place in the 22 forum State and is therefore subject to the State’s regulation.” 23 Goodyear, 564 U.S. at 919 (alterations, internal quotation 24 marks, and citation omitted). The exercise of specific 28 1 jurisdiction depends on in-state activity that “gave rise to the 2 episode-in-suit.” 3 317) (emphasis in original). 4 “commission of certain ‘single or occasional acts’ in a State 5 may be sufficient to render a corporation answerable in that 6 State with respect to those acts, though not with respect to 7 matters unrelated to the forum connections.” 8 Shoe, 326 U.S. at 318). Id. at 923 (quoting Int’l Shoe, 326 U.S. at In certain circumstances, the 9 Id. (quoting Int’l A. 10 The district court concluded that it had general 11 jurisdiction over the defendants; however, that conclusion 12 relies on a misreading of the Supreme Court’s decision in 13 Daimler. 14 In Daimler, the plaintiffs asserted claims under the Alien 15 Tort Statute and the Torture Victim Protection Act of 1991, see 16 28 U.S.C. §§ 1350 & note, as well as other claims, arising from 17 alleged torture that was committed in Argentina by the 18 Argentinian government with the collaboration of an Argentina- 19 based subsidiary of the German corporate defendant. 20 Daimler, 134 S. Ct. at 750-52. 21 argument that the California federal court could exercise 22 general personal jurisdiction over the German corporation based 23 on the continuous activities in California of the German 24 corporation’s indirect United States subsidiary. See The Supreme Court rejected the 29 See id. at 1 751. 2 was not incorporated in California and did not have its 3 principal place of business in California, could not be 4 considered to be “at home in California” and subject to general 5 jurisdiction there. 6 Daimler concluded that the German corporate parent, which Id. at 762. Daimler analogized its “at-home test” to that of an 7 individual’s domicile. “[F]or a corporation, it is an equivalent 8 place, one in which the corporation is fairly regarded as at 9 home. With respect to a corporation, the place of incorporation 10 and principal place of business are paradigm bases for general 11 jurisdiction.” 12 marks, and citations omitted). 13 Id. at 760 (alterations, internal quotation As an initial matter, while Daimler involved corporations, 14 and neither the PA nor the PLO is a corporation---the PA is a 15 non-sovereign government and the PLO is a foreign agent, and 16 both are unincorporated associations, see Part I.A---Daimler’s 17 reasoning was based on an analogy to general jurisdiction over 18 individuals, and there is no reason to invent a different test 19 for general personal jurisdiction depending on whether the 20 defendant is an individual, a corporation, or another entity. 21 Indeed, in Gucci this Court relied on Daimler when it found 22 there was no general personal jurisdiction over the Bank of 23 China, a non-party bank that was incorporated and headquartered 24 in China and owned by the Chinese government. 30 The Court 1 described the Daimler test as applicable to “entities.” 2 “General, all-purpose jurisdiction permits a court to hear ‘any 3 and all claims’ against an entity.” 4 (emphasis added); see id. at 134 n.13 (“The essence of general 5 personal jurisdiction is the ability to entertain ‘any and all 6 claims’ against an entity based solely on the entity's 7 activities in the forum, rather than on the particulars of the 8 case before the court.”). Consequently, we consider the PLO and 9 the PA entities subject to the Daimler test for general Gucci, 768 F.3d at 134 10 jurisdiction. See Klieman, 82 F. Supp. 3d at 245-46; Livnat, 82 11 F. Supp. 3d at 28; Safra, 82 F. Supp. 3d at 46. 12 Pursuant to Daimler, the question becomes, where are the PA 13 and PLO “‘fairly regarded as at home’”? 14 (quoting Goodyear, 564 U.S. at 924). 15 shows that the defendants are “at home” in Palestine, where they 16 govern. 17 and PLO. 18 Gaza, and it has no independently operated offices anywhere 19 else. 20 president, the Parliament, and the Palestinian security services 21 reside in Palestine. 134 S. Ct. at 761 The overwhelming evidence Palestine is the central seat of government for the PA The PA’s authority is limited to the West Bank and All PA governmental ministries, the Palestinian 22 As the District Court for the District of Columbia 23 observed, “[i]t is common sense that the single ascertainable 24 place where a government such a[s] the Palestinian Authority 31 1 should be amenable to suit for all purposes is the place where 2 it governs. 3 States.” 4 Supp. 3d at 48. 5 which during the relevant period maintained its headquarters in 6 Palestine and Amman, Jordan. 7 (“Defendants’ alleged contacts . . . do not suffice to render 8 the PA and the PLO ‘essentially at home’ in the United States.”) 9 Here, that place is the West Bank, not the United Livnat, 82 F. Supp. 3d at 30; see also Safra, 82 F. The same analysis applies equally to the PLO, See Klieman, 82 F. Supp. 3d at 245 The activities of the defendants’ mission in Washington, 10 D.C.---which the district court concluded simultaneously served 11 as an office for the PLO and the PA, see Sokolow, 2011 WL 12 1345086, at *3---were limited to maintaining an office in 13 Washington, promoting the Palestinian cause in speeches and 14 media appearances, and retaining a lobbying firm. 15 *4. 16 See id. at These contacts with the United States do not render the PA 17 and the PLO “essentially at home” in the United States. 18 Daimler, 134 S. Ct. at 754. 19 district court found supported general jurisdiction are like 20 those rejected as insufficient by the Supreme Court in Daimler. 21 In Daimler, the Supreme Court held as “unacceptably grasping” a 22 formulation that allowed for “the exercise of general 23 jurisdiction in every State in which a corporation ‘engages in a 24 substantial, continuous, and systematic course of business.’” See The commercial contacts that the 32 1 134 S. Ct. at 761. 2 California could not exercise general personal jurisdiction over 3 the German parent company even though that company’s indirect 4 subsidiary was the largest supplier of luxury vehicles to the 5 California market. 6 Daimler’s contacts with California “slim” and concluded that 7 they would “hardly render it at home” in California. 8 760. The Supreme Court found that a court in Id. at 752. The Supreme Court deemed Id. at 9 Daimler’s contacts with California were substantially 10 greater than the defendants’ contacts with the United States in 11 this case. 12 that Daimler should be subjected to general personal 13 jurisdiction in California for events that occurred anywhere in 14 the world. 15 many jurisdictions, not just the jurisdictions where the 16 entities were centered, for worldwide events unrelated to the 17 jurisdiction where suit was brought. 18 such a conception of general personal jurisdiction to be 19 incompatible with due process. 20 21 22 23 24 25 26 27 28 But still the Supreme Court rejected the proposition Such a regime would allow entities to be sued in The Supreme Court found The Supreme Court explained: General jurisdiction . . . calls for an appraisal of a corporation’s activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, “at home” would be synonymous with “doing business” tests framed before specific jurisdiction evolved in the United States. Nothing in International Shoe and its progeny suggests that “a particular quantum of local activity” should give a 33 1 2 3 4 5 Id. at 762 n.20 (internal citations omitted). 6 commercial contacts occasioned by the defendants’ Washington, 7 D.C. mission, there is no doubt that the “far larger quantum” of 8 the defendants’ activities took place in Palestine. State authority over a “far larger quantum of . . . activity” having no connection to any in-state activity. Regardless of the 9 The district court held that the record before it was 10 “insufficient to conclude that either defendant is ‘at home’ in 11 a particular jurisdiction other than the United States.” 12 Sokolow, 2014 WL 6811395, at *2. 13 supported by the record. 14 defendants are “at home” in Palestine, where these entities are 15 headquartered and from where they are directed. 16 134 S. Ct. at 762 n.20.11 17 That conclusion is not The evidence demonstrates that the See Daimler, The district court also erred in placing the burden on the 18 defendants to prove that there exists “an alternative forum 19 where Plaintiffs’ claims could be brought, and where the foreign 20 court could grant a substantially similar remedy.” 21 2011 WL 1345086, at *7. 22 fact, it is the plaintiff’s burden to establish that the court 23 has personal jurisdiction over the defendants. Sokolow, Daimler imposes no such burden. 11 In See Koehler v. It appears that the district court, when considering where the defendants were “at home,” limited its inquiry to areas that are within a sovereign nation. We see no basis in precedent for this limitation. 34 1 Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996) (“[T]he 2 plaintiff bears the ultimate burden of establishing jurisdiction 3 over the defendant by a preponderance of evidence . . . .”); 4 Metro. Life Ins., 84 F.3d at 566-67; see also Klieman, 82 F. 5 Supp. 3d at 243; Livnat, 82 F. Supp. 3d at 30; Safra, 82 F. 6 Supp. 3d at 49.12 7 Finally, the district court did not dispute the defendants’ 8 ties to Palestine but concluded that the court had general 9 jurisdiction pursuant to an “exception” that the Supreme Court 10 alluded to in a footnote in Daimler. 11 Court did not “foreclose the possibility that in an exceptional 12 case, a corporation’s operations in a forum other than its 13 formal place of incorporation or principal place of business may 14 be so substantial and of such a nature as to render the 15 corporation at home in that State.” 134 S. Ct. at 761 n.19 16 (citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 17 447-48 (1952)). 12 In Daimler, the Supreme The district court’s focus on the importance of identifying an alternative forum may have been borrowed inappositely from forum non conveniens jurisprudence, pursuant to which a court considers (1) the degree of deference to be afforded to the plaintiff’s choice of forum; (2) whether there is an adequate alternative forum for adjudicating the dispute; and (3) whether the balance of private and public interests tips in favor of adjudication in one forum or the other. See Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005). However, that is not the test for general jurisdiction under Daimler, 134 S. Ct. at 762 n.20. 35 1 Daimler analyzed the 1952 Perkins case, “‘the textbook case 2 of general jurisdiction appropriately exercised over a foreign 3 corporation that has not consented to suit in the forum.’” 4 at 755-56 (quoting Goodyear, 564 U.S. at 928). 5 Perkins was a company, Benguet Consolidated Mining Company 6 (“Benguet”), which was incorporated under the laws of the 7 Philippines, where it operated gold and silver mines. 8 World War II, the Japanese occupied the Philippines, and 9 Benguet’s president relocated to Ohio, where he kept an office, Id. The defendant in During 10 maintained the company’s files, and oversaw the company’s 11 activities. Perkins, 342 U.S. at 447-48. 12 nonresident of Ohio, sued Benguet in a state court in Ohio on a 13 claim that neither arose in Ohio nor related to the 14 corporation’s activities in Ohio, but the Supreme Court 15 nevertheless held that the Ohio courts could constitutionally 16 exercise general personal jurisdiction over the defendant. 17 at 438, 440. 18 the corporation’s principal, if temporary, place of business.’” 19 Daimler, 134 S. Ct. at 756 (quoting Keeton v. Hustler Magazine, 20 Inc., 465 U.S. 770, 780 n.11 (1984)). 21 The plaintiff, a Id. As the Supreme Court later observed: “‘Ohio was Such exceptional circumstances did not exist in Daimler, 22 id. at 761 n.19, or in Gucci. 23 while a nonparty bank had branch offices in the forum, it was 24 not an “exceptional case” in which to exercise general personal In Gucci, this Court held that, 36 1 jurisdiction where the bank was incorporated and headquartered 2 elsewhere, and its contacts were not “‘so continuous and 3 systematic as to render [it] essentially at home in the forum.’” 4 768 F.3d at 135 (quoting Daimler, 134 S. Ct. at 761 n.19). 5 The defendants’ activities in this case, as with those of 6 the defendants in Daimler and Gucci, “plainly do not approach” 7 the required level of contact to qualify as “exceptional.” 8 Daimler, 134 S. Ct. at 761 & n.19. 9 transported their principle “home” to the United States, even The PLO and PA have not 10 temporarily, as the defendant had in Perkins. 11 Lockheed Martin Corp., 814 F.3d 619, 628-30 (2d Cir. 2016). 12 See Brown v. Accordingly, pursuant to the Supreme Court’s recent 13 decision in Daimler, the district court could not properly 14 exercise general personal jurisdiction over the defendants. 15 B. 16 The district court did not rule explicitly on whether it 17 had specific personal jurisdiction over the defendants, but the 18 question was sufficiently briefed and argued to allow us to 19 reach that issue. 20 “The inquiry whether a forum State may assert specific 21 jurisdiction over a nonresident defendant focuses on the 22 relationship among the defendant, the forum, and the litigation. 23 For a State to exercise jurisdiction consistent with due 24 process, the defendant’s suit-related conduct must create a 37 1 substantial connection with the forum State.” 2 134 S. Ct. 1115, 1121 (2014) (internal quotation marks and 3 citations omitted). 4 the forum “must arise out of contacts that the ‘defendant 5 himself’ creates with the forum.” 6 King, 471 U.S. at 475) (emphasis in original). The “‘minimum 7 contacts’ analysis looks to the defendant’s contacts with the 8 forum State itself, not the defendant’s contacts with persons 9 who reside there.” 10 11 Walden v. Fiore, The relationship between the defendant and Id. Id. at 1122 (citing Burger And the “same principles apply when intentional torts are involved.” Id. at 1123. The question in this case is whether the defendants’ suit- 12 related conduct---their role in the six terror attacks at issue- 13 --creates a substantial connection with the forum State pursuant 14 to the ATA. The relevant “suit-related conduct” by the 15 defendants was the conduct that could have subjected them to 16 liability under the ATA. On its face, the conduct in this case 17 did not involve the defendants’ conduct in the United States in 18 violation of the ATA. 19 States citizens, the terrorist attacks occurred in and around 20 Jerusalem, and the defendants’ activities in violation of the 21 ATA occurred outside the United States. While the plaintiff-victims were United 22 The ATA provides: 23 24 25 Any 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, 38 1 2 3 4 5 6 7 survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. 18 U.S.C. § 2333(a) To prevail under the ATA, a plaintiff must prove “three 8 formal elements: unlawful action, the requisite mental state, 9 and causation.” Sokolow, 60 F. Supp. 3d at 514 (quoting Gill v. 10 Arab Bank, PLC, 893 F. Supp. 2d 542, 553 (E.D.N.Y. 2012)) 11 (emphasis in original). 12 To establish an “unlawful action,” the plaintiffs must show 13 that their injuries resulted from an act of “international 14 terrorism.” 15 activities that, among other things, “involve violent acts or 16 acts dangerous to human life that are a violation of the 17 criminal laws of the United States or of any State, or that 18 would be a criminal violation if committed within the 19 jurisdiction of the United States or of any State.” 18 U.S.C. 20 § 2331(1)(A). 21 intimidate or coerce a civilian population; (ii) to influence 22 the policy of a government by intimidation or coercion; or 23 (iii) to affect the conduct of a government by mass destruction, 24 assassination, or kidnapping.” 25 26 The ATA defines “international terrorism” as The acts must also appear to be intended “(i) to 18 U.S.C. § 2331(1)(B)(i)-(iii). The plaintiffs asserted that the defendants were responsible on a respondeat superior theory for a variety of 39 1 predicate acts, including murder and attempted murder, 18 U.S.C. 2 §§ 1111, 2332, use of a destructive device on a mass 3 transportation vehicle, 18 U.S.C. § 1992, detonating an 4 explosive device on a public transportation system, 18 U.S.C. 5 § 2332f, and conspiracy to commit those acts, 18 U.S.C. § 371. 6 See Sokolow, 60 F. Supp. 3d at 515. 7 defendants directly violated federal and state antiterrorism 8 laws, including 18 U.S.C. § 2339B, by providing material support 9 to FTO-designated groups (the AAMB and Hamas) and by harboring 10 persons whom the defendants knew or had reasonable grounds to 11 believe committed or were about to commit an offense relating to 12 terrorism, see 18 U.S.C. § 2339 et seq.; see also Sokolow, 60 F. 13 Supp. 3d at 520-21, 523. 14 They also asserted that the The ATA further limits international terrorism to 15 activities that “occur primarily outside the territorial 16 jurisdiction of the United States, or transcend national 17 boundaries in terms of the means by which they are accomplished, 18 the persons they appear intended to intimidate or coerce, or the 19 locale in which their perpetrators operate or seek asylum.” 20 U.S.C. § 2331(1)(C) (emphasis added). 21 18 The bombings and shootings here occurred entirely outside 22 the territorial jurisdiction of the United States. 23 question becomes: What other constitutionally sufficient 40 Thus, the 1 connection did the commission of these torts by these defendants 2 have to this jurisdiction? 3 The jury found in a special verdict that the PA and the PLO 4 were liable for the attacks under several theories. 5 the attacks, the jury found that the PA and the PLO were liable 6 for providing material support or resources that were used in 7 preparation for, or in carrying out, each attack. 8 9 In all of In addition, the jury found that in five of the attacks--the January 22, 2002 Jaffa Road Shooting, the January 27, 2002 10 Jaffa Road Bombing, the March 21, 2002 King George Street 11 Bombing, the July 31, 2002 Hebrew University Bombing, and the 12 January 29, 2004 Bus No. 19 Bombing---the PA was liable because 13 an employee of the PA, acting within the scope of the employee’s 14 employment and in furtherance of the activities of the PA, 15 either carried out, or knowingly provided material support or 16 resources that were used in preparation for, or in carrying out, 17 the attack. 18 The jury also found that in one of the attacks---the July 19 31, 2002 Hebrew University Bombing---the PLO and the PA harbored 20 or concealed a person who the organizations knew, or had 21 reasonable grounds to believe, committed or was about to commit 22 the attack. 23 24 Finally, the jury found that in three attacks---the June 19, 2002 French Hill Bombing, the July 31, 2002 Hebrew 41 1 University Bombing, and the January 29, 2004 Bus No. 19 Bombing- 2 --the PA and PLO knowingly provided material support to an FTO- 3 designated group (the AAMB or Hamas). 4 But these actions, as heinous as they were, were not 5 sufficiently connected to the United States to provide specific 6 personal jurisdiction in the United States. 7 to conclude that the defendants participated in these acts in 8 the United States or that their liability for these acts 9 resulted from their actions that did occur in the United States. 10 There is no basis In short, the defendants were liable for tortious 11 activities that occurred outside the United States and affected 12 United States citizens only because they were victims of 13 indiscriminate violence that occurred abroad. 14 citizenship of the plaintiffs is an insufficient basis for 15 specific jurisdiction over the defendants. 16 relationship of the defendants, the forum, and the defendants’ 17 suit-related conduct points to the conclusion that there is no 18 specific personal jurisdiction over the defendants for the torts 19 in this case. 20 Goodyear, 564 U.S. at 923. 21 The residence or A focus on the See Walden, 134 S. Ct. at 1121; see also In the absence of such a relationship, the plaintiffs argue 22 on appeal that the Court has specific jurisdiction for three 23 reasons. 24 test,” a defendant acting entirely outside the United States is First, the plaintiffs argue that, under the “effects 42 1 subject to jurisdiction “if the defendant expressly aimed its 2 conduct” at the United States. 3 Canadian Bank, SAL, 732 F.3d 161, 173 (2d Cir. 2013). 4 plaintiffs point to the jury verdict that found that the 5 defendants provided material support to designated FTOs---the 6 AAMB and Hamas---and that the defendants’ employees, acting 7 within the scope of their employment, killed and injured United 8 States citizens. 9 attacks were intended to influence United States policy to favor Licci ex rel. Licci v. Lebanese The They also argue that the defendants’ terror 10 the defendants’ political goals. 11 that the defendants purposefully availed themselves of the forum 12 by establishing a continuous presence in the United States and 13 pressuring United States government policy by conducting terror 14 attacks in Israel and threatening further terrorism unless 15 Israel withdrew from Gaza and the West Bank. 16 Lambert, 305 F.3d at 128. 17 defendants consented to personal jurisdiction under the ATA by 18 appointing an agent to accept process. 19 Second, the plaintiffs argue See Banks Brussels Third, the plaintiffs argue that the Walden forecloses the plaintiffs’ arguments. First, with 20 regard to the effects test, the defendant must “expressly aim[]” 21 his conduct at the United States. 22 Pursuant to Walden, it is “insufficient to rely on a defendant’s 23 ‘random, fortuitous, or attenuated contacts’ or on the 24 ‘unilateral activity’ of a plaintiff” with the forum to 43 See Licci, 732 F. 3d at 173. 1 establish specific jurisdiction. 2 (quoting Burger King, 471 U.S. at 475). 3 related acts of terrorism are the kind of activities that the 4 ATA proscribes, those acts were unconnected to the forum and 5 were not expressly aimed at the United States. 6 State’s exercise of jurisdiction over an out-of-state 7 intentional tortfeasor must be based on intentional conduct by 8 the defendant that creates the necessary contacts with the 9 forum.” Id. Walden, 134 S. Ct. at 1123 While the killings and And “[a] forum That is not the case here. 10 The plaintiffs argue that United States citizens were 11 targets of these attacks, but their own evidence establishes the 12 random and fortuitous nature of the terror attacks. 13 example, at trial, the plaintiffs emphasized how the “killing 14 was indeed random” and targeted “Christians and Jews, Israelis, 15 Americans, people from all over the world.” 16 Evidence at trial showed that the shooters fired 17 “indiscriminately,” J.A. 3944, and chose sites for their suicide 18 bomb attacks that were “full of people,” J.A. 4030-31, because 19 they sought to kill “as many people as possible,” J.A. 3944; see 20 also J.A. 4031. 21 For J.A. 3836. The plaintiffs argue that “[i]t is a fair inference that 22 Defendants intended to hit American citizens by continuing a 23 terror campaign that continuously hit Americans . . . .” 24 Br. at 37 (emphasis in original). 44 Pls.’ But the Constitution requires 1 much more purposefully directed contact with the forum. 2 example, the Supreme Court has “upheld the assertion of 3 jurisdiction over defendants who have purposefully ‘reach[ed] 4 out beyond’ their State and into another by, for example, 5 entering a contractual relationship that ‘envisioned continuing 6 and wide-reaching contacts’ in the forum State,” Walden, 134 S. 7 Ct. at 1122 (alteration in original) (quoting Burger King, 472 8 U.S. at 479-80), or “by circulating magazines to ‘deliberately 9 exploi[t]’ a market in the forum State.” For Id. (alteration in 10 original) (quoting Keeton, 465 U.S. at 781). 11 such purposeful connection to the forum in this case, and it 12 would be impermissible to speculate based on scant evidence what 13 the terrorists intended to do. 14 But there was no Furthermore, the facts of Walden also suggest that a 15 defendant’s mere knowledge that a plaintiff resides in a 16 specific jurisdiction would be insufficient to subject a 17 defendant to specific jurisdiction in that jurisdiction if the 18 defendant does nothing in connection with the tort in that 19 jurisdiction. 20 Georgia who was working as a deputized Drug Enforcement 21 Administration (“DEA”) agent at the Atlanta airport. 22 informed that the respondents, Gina Fiore and Keith Gipson, were 23 flying from San Juan, Puerto Rico through Atlanta en route to 24 their final destination in Las Vegas, Nevada. In Walden, the petitioner was a police officer in 45 He was See Joint 1 Appendix, Walden v. Fiore, 2013 WL 2390248, *41-42 (U.S.) (Decl. 2 of Anthony Walden). 3 respondents and searched their bags in Atlanta and examined 4 their California drivers’ licenses. 5 1119. 6 carry-on bag and seized it, giving rise to a claim for an 7 unconstitutional search under Bivens v. Six Unknown Named Agents 8 of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). 9 Walden, 134 S. Ct. at 1119-20. Walden and his DEA team stopped the Id.; Walden, 134 S. Ct. at Walden found almost $100,000 in cash in the respondents’ See The Supreme Court found that the 10 petitioner’s contacts with Nevada were insufficient to establish 11 personal jurisdiction over the petitioner in a Nevada federal 12 court, even though Walden knew that the respondents were 13 destined for Nevada. 14 See id. at 1119. In this case, the plaintiffs point us to no evidence that 15 these indiscriminate terrorist attacks were specifically 16 targeted against United States citizens, and the mere knowledge 17 that United States citizens might be wronged in a foreign 18 country goes beyond the jurisdictional limit set forth in 19 Walden. 20 The plaintiffs cite to several cases to support their 21 argument that specific jurisdiction is warranted under an 22 “effects test.” 23 this case. Those cases are easily distinguishable from Indeed, they point to the kinds of circumstances 46 1 that would give rise to specific jurisdiction under the ATA, 2 which are not present here. 3 For example, in Mwani v. Bin Laden, 417 F.3d 1 (D.C. Cir. 4 2005), the Court of Appeals for the District of Columbia Circuit 5 found that specific personal jurisdiction over Osama Bin Laden 6 and al Qaeda was supported by allegations that they 7 “orchestrated the bombing of the American embassy in Nairobi, 8 not only to kill both American and Kenyan employees inside the 9 building, but to cause pain and sow terror in the embassy’s home 10 country, the United States,” as well as allegations of “an 11 ongoing conspiracy to attack the United States, with overt acts 12 occurring within this country’s borders.” 13 added). 14 bombing, as well as the plot to bomb the United Nations, Federal 15 Plaza, and the Lincoln and Holland Tunnels in New York. 16 Furthermore, the Court of Appeals found that bin Laden and al 17 Qaeda “‘purposefully directed’ [their] activities at residents” 18 of the United States, and that the case “result[ed] from 19 injuries to the plaintiffs ‘that arise out of or relate to those 20 activities,’” id. (quoting Burger King, 471 U.S. at 472). Id. at 13 (emphasis The plaintiffs pointed to the 1993 World Trade Center Id. 21 “[E]xercising specific jurisdiction because the victim of a 22 foreign attack happened to be an American would run afoul of the 23 Supreme Court’s holding that ‘[d]ue process requires that a 24 defendant be haled into court in a forum State based on his own 47 1 affiliation with the State, not based on the “random, 2 fortuitous, or attenuated” contacts he makes by interacting with 3 other persons affiliated with the State.’” 4 3d at 248 (quoting Walden, 134 S. Ct. at 1123); see Safra, 82 F. 5 Supp. 3d at 52 (distinguishing Mwani); see also In re Terrorist 6 Attacks on Sept. 11, 2001, 538 F.3d at 95-96 (holding that even 7 if Saudi princes could and did foresee that Muslim charities 8 would use their donations to finance the September 11 attacks, 9 providing indirect funding to an organization that was openly Klieman, 82 F. Supp. 10 hostile to the United States did not constitute the type of 11 intentional conduct necessary to constitute purposeful direction 12 of activities at the forum); Livnat, 82 F. Supp. 3d at 33. 13 The plaintiffs also rely on O’Neill, 714 F.3d at 659, which 14 related to the September 11 attacks. 15 first clarified that “specific personal jurisdiction properly 16 exists where the defendant took ‘intentional, and allegedly 17 tortious, actions . . . expressly aimed’ at the forum.” 18 674 (quoting Calder, 465 U.S. at 789). 19 that, “the fact that harm in the forum is foreseeable . . . 20 insufficient for the purpose of establishing specific personal 21 jurisdiction over a defendant.” 22 the plaintiffs’ allegations were insufficient to establish 23 personal jurisdiction over about two dozen defendants, but that 24 jurisdictional discovery was warranted for twelve other Id. 48 In that case, this Court Id. at This Court also noted is This Court then held that 1 defendants whose “alleged support of al Qaeda [was] more 2 direct.” 3 “allegedly controlled and managed some of [the front] 4 ‘charitable organizations’ and, through their positions of 5 control, they allegedly sent financial and other material 6 support directly to al Qaeda when al Qaeda allegedly was known 7 to be targeting the United States.” 8 added). 9 Id. at 678; see also id. at 656-66. Those defendants Id. (second emphasis The plaintiffs argue that this Court should likewise find 10 jurisdiction because the defendants’ “direct, knowing provision 11 of material support to designated FTOs [in this case, Hamas and 12 the AAMB] is enough---standing alone---to sustain specific 13 jurisdiction because they knowingly aimed their conduct at U.S. 14 interests.” 15 O’Neill. 16 that harm in the forum is foreseeable” was “insufficient for the 17 purpose of establishing specific personal jurisdiction over a 18 defendant,” 714 F.3d at 674, and the Court did not end its 19 inquiry when it concluded that the defendants may have provided 20 support to terror organizations. 21 “factual issues persist with respect to whether this support was 22 ‘expressly aimed’ at the United States,” warranting 23 jurisdictional discovery. 24 the specific aim of the group receiving support---particularly Pls.’ Br. at 36. But that argument misreads In O’Neill, this Court emphasized that the mere “fact Indeed, the Court held that Id. at 678-79. 49 The Court looked at 1 that al Qaeda was “known to be targeting the United States”--- 2 and not simply that it and other defendants were “terrorist 3 organizations.” 4 Id. at 678.13 The plaintiffs also cite Calder v. Jones, 465 U.S. at 783. 5 In that case, a California actress brought a libel suit in 6 California state court against a reporter and an editor, both of 7 whom worked for a tabloid at the tabloid’s Florida headquarters. 8 Id. at 784. 9 written and edited by the defendants in Florida for the tabloid, The plaintiff’s claims were based on an article 10 which had a California circulation of about 600,000. 11 784-86. 12 personal jurisdiction over the defendants for a libel action was 13 proper based on the effects of the defendants’ conduct in 14 California. 15 sources, and the brunt of the harm, in terms both of 16 respondent’s emotional distress and the injury to her 17 professional reputation, was suffered in California,” the 18 Supreme Court held. Id. at The Supreme Court held that California’s assertion of Id. at 788. “The article was drawn from California Id. at 788-89. 13 “In sum, California is the Furthermore, the mere designation of a group as an FTO does not reflect that the organization has aimed its conduct at the United States. The Secretary of State may “designate an organization as a foreign terrorist organization” if the Secretary finds “the organization is a foreign organization,” “the organization engages in terrorist activity,” “or retains the capability and intent to engage in terrorist activity or terrorism,” and “the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.” 8 U.S.C. § 1189(a)(1)(A)-(C). 50 1 focal point both of the story and of the harm suffered.” 2 789 (emphasis added); see also Walden, 134 S. Ct. at 1123 3 (describing the contacts identified in Calder as “ample” to 4 support specific jurisdiction). 5 in Walden, the jurisdictional inquiry in Calder focused on the 6 relationship among the defendant, the forum, and the litigation. 7 Walden, 134 S. Ct. at 1123. 8 9 Id. at As the Supreme Court explained Unlike in Calder, it cannot be said that the United States is the focal point of the torts alleged in this litigation. In 10 this case, the United States is not the nucleus of the harm--- 11 Israel is. 12 See Safra, 82 F. Supp. 3d at 51. Finally, the plaintiffs rely on two criminal cases, United 13 States v. Yousef, 327 F.3d 56 (2d Cir. 2003) (per curiam), and 14 United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011), for 15 their argument that the “effects test” supports jurisdiction. 16 In both cases, this Court applied the due process test for 17 asserting jurisdiction over extraterritorial criminal conduct, 18 which differs from the test applicable in this civil case, see 19 Al Kassar, 660 F.3d at 118; Yousef, 327 F.3d at 111-12, and does 20 not require a nexus between the specific criminal conduct and 21 harm within the United States. 22 Murillo, No. 15-4235, 2016 WL 3257016, at *3 (4th Cir. June 14, 23 2016)(“[I]t is not arbitrary to prosecute a defendant in the 24 United States if his actions affected significant American See also United States v. 51 1 interests---even if the defendant did not mean to affect those 2 interests.” (internal citation and quotation marks omitted)). 3 In order to apply a federal criminal statute to a defendant 4 extraterritorially consistent with due process, “‘there must be 5 a sufficient nexus between the defendant and the United States, 6 so that such application would not be arbitrary or fundamentally 7 unfair.’ 8 jurisdictional nexus exists when the aim of that activity is to 9 cause harm inside the United States or to U.S. citizens or For non-citizens acting entirely abroad, a 10 interests.” 11 (quoting Yousef, 327 F.3d at 111). 12 Al Kassar, 660 F.3d 108, 118 (emphasis added) In a civil action, as Walden makes clear, “the defendant’s 13 suit-related conduct must create a substantial connection with 14 the forum State.” 15 134 S. Ct. at 1121. Even setting aside the fact that both Yousef and Al Kassar 16 applied the more expansive due process test in criminal cases, 17 the defendants in both cases had more substantial connections 18 with the United States than the defendants have in the current 19 litigation. 20 bombing of an airplane traveling from the Philippines to Japan. 21 See 327 F.3d at 79. 22 a dozen United States-flag aircraft in an effort to inflict 23 injury on this country and its people and influence American 24 foreign policy, and their attack on the Philippine Airlines Yousef involved a criminal prosecution for the The Yousef defendants “conspired to attack 52 1 flight was a ‘test-run’ in furtherance of this conspiracy.” 2 at 112. 3 Id. In Al Kassar, several defendants were convicted of 4 conspiring to kill United States officers, to acquire and export 5 anti-aircraft missiles, and knowingly to provide material 6 support to a terrorist organization; two were also convicted of 7 conspiring to kill United States citizens and of money 8 laundering. 9 challenged their convictions on a number of grounds, including 660 F.3d at 115. On appeal, the defendants 10 that the defendants’ Fifth Amendment due process rights were 11 violated by prosecuting them for activities that occurred 12 abroad. 13 because the defendants conspired to sell arms to a group “with 14 the understanding that they would be used to kill Americans and 15 destroy U.S. property; the aim therefore was to harm U.S. 16 citizens and interests and to threaten the security of the 17 United States.” Id. at 117-18. This Court rejected that argument Id. at 118. 18 In this case, the defendants undertook terror attacks 19 within Israel, and there is no evidence the attacks specifically 20 targeted United States citizens. 21 53-54; see also Livnat, 82 F. Supp. 3d at 34. 22 23 See Safra, 82 F. Supp. 3d at Accordingly, in the present case, specific jurisdiction is not appropriate under the “effects test.” 53 1 Second, Walden undermines the plaintiffs’ arguments that 2 the defendants met the “purposeful availment” test by 3 establishing a continuous presence in the United States and 4 pressuring United States government policy. 5 defendants’ Washington, D.C. mission confuses the issue: Walden 6 requires that the “suit-related conduct”---here, the terror 7 attacks in Israel---have a “substantial connection with the 8 forum.” 134 S. Ct. at 1121. 9 and its associated lobbying efforts do not support specific The emphasis on the The defendants’ Washington mission 10 personal jurisdiction on the ATA claims. 11 be made to answer in this forum “with respect to matters 12 unrelated to the forum connections.” 13 see also Klieman, 82 F. Supp. 3d at 247 (“Courts typically 14 require that the plaintiff show some sort of causal relationship 15 between a defendant’s U.S. contacts and the episode in suit.”). The defendants cannot Goodyear, 564 U.S. at 923; 16 The plaintiffs argue on appeal that the defendants intended 17 their terror campaign to influence not just Israel, but also the 18 United States. 19 pamphlets published by the PA---that, the plaintiffs argue, 20 shows that the defendants were attempting to influence United 21 States policy toward the Israel-Palestinian conflict. 22 exhibits themselves speak in broad terms of how United States 23 interests in the region are in danger and how the United States 24 and Europe should exert pressure on Israel to change its They point to trial evidence---specifically 54 The 1 practices toward the Palestinians. It is insufficient for 2 purposes of due process to rely on evidence that a political 3 organization sought to influence United States policy, without 4 some other connection among the activities underlying the 5 litigation, the defendants, and the forum. 6 activity is insufficient under Walden. 7 Such attenuated The plaintiffs cite Licci, 732 F.3d 161, to support their 8 argument that the defendants meet the purposeful availment test. 9 But the circumstances of that case are distinguishable and 10 illustrate why the defendants here do not meet that test. 11 Licci, American, Canadian, and Israeli citizens who were injured 12 or whose family members were killed in a series of terrorist 13 rocket attacks by Hizbollah in Israel brought an action under 14 the ATA and other laws against the Lebanese Canadian Bank, SAL 15 (“LCB”), which allegedly facilitated Hizbollah’s acts by using 16 correspondent banking accounts at a defendant New York bank 17 (American Express Bank Ltd.) to effectuate wire transfers 18 totaling several million dollars on Hizbollah’s behalf. 19 164-66. 20 jurisdiction over the defendants was constitutional because of 21 the defendants’ “repeated use of New York’s banking system, as 22 an instrument for accomplishing the alleged wrongs for which the 23 plaintiffs seek redress.” 24 constituted “‘purposeful[] avail[ment] . . . of the privilege of In Id. at This Court concluded that the exercise of personal Id. at 171. 55 These contacts 1 doing business in [New York],’ so as to permit the subjecting of 2 LCB to specific jurisdiction within the Southern District of New 3 York . . . .” 4 127). 5 Id. (quoting Bank Brussels Lambert, 305 F.3d at “It should hardly be unforeseeable to a bank that selects 6 and makes use of a particular forum’s banking system that it 7 might be subject to the burden of a lawsuit in that forum for 8 wrongs related to, and arising from, that use.” 9 (emphasis added) (footnote omitted). 10 Id. at 171-72 In Licci, this Court also distinguished the “effects test” 11 theory of personal jurisdiction which is “typically invoked 12 where (unlike here) the conduct that forms the basis for the 13 controversy occurs entirely out-of-forum, and the only relevant 14 jurisdictional contacts with the forum are therefore in-forum 15 effects harmful to the plaintiff.” 16 (footnote omitted). 17 inappropriate because “the constitutional exercise of personal 18 jurisdiction over a foreign defendant” turned on conduct that 19 “occur[ed] within the forum,” id. (emphasis in original), namely 20 the repeated use of bank accounts in New York to support the 21 alleged wrongs for which the plaintiffs sued. Id. at 173 (emphasis added) The Court held that the effects test was 22 In this case, there is no such connection between the 23 conduct on which the alleged personal jurisdiction is based and 24 the forum. And the connections the defendants do have with the 56 1 United States---the Washington, D.C. and New York missions--- 2 revolve around lobbying activities that are not proscribed by 3 the ATA and are not connected to the wrongs for which the 4 plaintiffs here seek redress. 5 At a hearing before the district court, the plaintiffs also 6 cited Bank Brussels Lambert, 305 F.3d 120, as their “best case” 7 for their purposeful availment argument. 8 that case, too, is distinguishable. 9 its lawyers for legal malpractice that occurred in Puerto Rico. See J.A. 1128. But There, a client bank sued 10 Bank Brussels Lambert, 305 F.3d at 123. 11 the Puerto Rican law firm defendant had sufficient minimum 12 contacts with the New York forum and purposely availed itself of 13 the privilege of doing business in New York, because, although 14 the law firm did not solicit the bank as a client in New York, 15 the firm maintained an apartment in New York partially for the 16 purpose of better servicing its New York clients, the firm faxed 17 newsletters regarding Puerto Rican legal developments to persons 18 in New York, the firm had numerous New York clients, and its 19 marketing materials touted the firm’s close relationship with 20 the Federal Reserve Bank of New York. 21 engagement which gave rise to the dispute here is not simply one 22 of a string of fortunate coincidences for the firm. 23 picture which emerges from the above facts is that of a law firm 24 which seeks to be known in the New York legal market, makes 57 This Court held that Id. at 127-29. “The Rather, the 1 efforts to promote and maintain a client base there, and profits 2 substantially therefrom.” 3 there was “nothing fundamentally unfair about requiring the firm 4 to defend itself in the New York courts when a dispute arises 5 from its representation of a New York client---a representation 6 which developed in a market it had deliberately cultivated and 7 which, after all, the firm voluntarily undertook.” 8 In short, the defendants’ contacts with the forum were 9 sufficiently related to the malpractice claims that were at 10 11 Id. at 128. This Court held that Id. at 129. issue in the suit. That is not the case here. The plaintiffs’ claims did not 12 arise from the defendants’ purposeful contacts with the forum. 13 And where the defendant in Bank Brussels Lambert purposefully 14 and repeatedly reached into New York to obtain New York clients- 15 --and as a result of those activities, it obtained a 16 representation for which it was sued---in this case, the 17 plaintiffs’ claims did not arise from any activity by the 18 defendants in this forum. 19 Thus, in this case, unlike in Licci and Bank Brussels 20 Lambert, the defendants are not subject to specific personal 21 jurisdiction based on a “purposeful availment” theory because 22 the plaintiffs’ claims do not arise from the defendants’ 23 activity in the forum. 58 1 Third, the plaintiffs’ argue that the defendants consented 2 to personal jurisdiction under the ATA by appointing an agent to 3 accept process. 4 process on the representative of the PLO and PA in Washington. 5 See 18 U.S.C. § 2334(a). 6 the constitutional question of whether due process is satisfied. 7 The plaintiffs contend that under United States v. Scophony It is clear that the ATA permitted service of However, the statute does not answer 8 Corp. of America, 333 U.S. 795 (1948), meeting the statutory 9 requirement for service of process suffices to establish 10 personal jurisdiction. 11 proposition. 12 business’ of a substantial character in the New York district at 13 the times of service, so as to establish venue there,” and so 14 that “such a ruling presents no conceivable element of offense 15 to ‘traditional notions of fair play and substantial justice.’” 16 Id. at 818 (quoting Int’l Shoe, 326 U.S. at 316). 17 Scophony affirms the understanding, echoed by this Court in 18 Licci, 673 F.3d at 60, and O’Neill, 714 F.3d at 673-74, that due 19 process analysis---considerations of minimum contacts and 20 reasonableness---applies even when federal service-of-process 21 statutes are satisfied. 22 jurisdiction must comport with constitutional due process 23 principles.” 24 641. But Scophony does not stand for that The defendant in Scophony “was ‘transacting Thus, Simply put, “the exercise of personal Licci, 673 F.3d at 60; see also Brown, 814 F.3d at As explained above, due process is not satisfied in this 59 1 case, and the courts have neither general nor specific personal 2 jurisdiction over the defendants, regardless of the service-of- 3 process statute. 4 In sum, because the terror attacks in Israel at issue here 5 were not expressly aimed at the United States and because the 6 deaths and injuries suffered by the American plaintiffs in these 7 attacks were “random [and] fortuitous” and because lobbying 8 activities regarding American policy toward Israel are 9 insufficiently “suit-related conduct” to support specific 10 jurisdiction, the Court lacks specific jurisdiction over these 11 defendants. Walden, 134 S. Ct. at 1121, 1123. 12 13 *** The terror machine gun attacks and suicide bombings that 14 triggered this suit and victimized these plaintiffs were 15 unquestionably horrific. 16 jurisdiction in a civil case beyond the limits prescribed by the 17 due process clause of the Constitution, no matter how horrendous 18 the underlying attacks or morally compelling the plaintiffs’ 19 claims. 20 But the federal courts cannot exercise The district court could not constitutionally exercise 21 either general or specific personal jurisdiction over the 22 defendants in this case. 23 dismissed. Accordingly, this case must be 24 60 1 CONCLUSION 2 We have considered all of the arguments of the parties. 3 the extent not specifically addressed above, they are either 4 moot or without merit. 5 VACATE the judgment of the district court and REMAND the case to 6 the district court with instructions to DISMISS the case for 7 want of jurisdiction. To For the reasons explained above, we 61

Primary Holding

Plaintiffs won a $655.5 million jury verdict after the jury found defendants liable for six attacks. The Second Circuit reversed the judgment on the ground that United States Constitution precludes the exercise of personal jurisdiction over the PLO and Palestinian Authority under general jurisdiction or specific jurisdiction.

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