PLO Loses a Round in Court

(CN) - A federal judge refused to let the Palestinian Liberation Organization use jurisdiction to shield itself from liability over a shooting death.

Esh Kodesh Gilmore was on duty as a security guard at the National Insurance Institute's East Jerusalem Branch on Oct. 30, 2000, when a gunman burst into the building and open fire on him and a second guard, Itai Suissa.

Gilmore, who was shot several times, was rushed to Hadassah Ein Kerem Hospital in Jerusalem, but died almost immediately upon arrival. According to reports published by Arutz Sheva, otherwise known as Israel National News, Suissa was seriously wounded, by recovered.

On April 18, 2001, Gilmore's family sued the Palestine Interim Self-Government Authority, the Palestinian Liberation Organization, and 11 of its then-current and former employees, seeking compensation for his death under the Anti-Terrorism Act of 1991 and related theories.

Since then, the long-running case has been subject to numerous twists and turns. After the defendants failed to file a responsive pleading, the U.S. District Court for the District of Columbia entered a default judgment against them on Dec. 20, 2001.

A month later, the defendants appeared in court and moved to vacate the entry of default, which the court granted on April 17, 2002. At the same hearing, the institutional defendants moved to dismiss the case for failure to state a claim and lack of subject matter jurisdiction, and the individual defendants moved to dismiss the case for lack of personal jurisdiction.

In March 2006, the court denied the motions filed by the Palestinian Authority and the PLO, but granted the motion filed by the individual defendants. When the institutional defendants against failed to file an answer to the complaint, the court again entered a default judgment against them.

The defendants then retained new counsel, got the court to vacate its default judgment, and the case entered a lengthy discovery phase.

On Aug. 9, 2012, the defendants filed a motion for summary judgment, and on Feb. 10, 2014 filed an instant motion for judgment on the pleadings for lack of personal jurisdiction.

As explained in her opinion denying the instant motion, U.S. District Judge Gladys Kessler said the defendants premised their request for judgment on the U.S. Supreme Court's recent decision in Daimler AG v. Bauman. In that case, the justices held that "a court may assert [general] jurisdiction over a foreign corporation ... only when the corporation's affiliations with the [forum] are so constant and pervasive 'as to render [it] essentially at home in the forum State.'"

In light of this decision, Kessler wrote, "Defendants contend that they are not subject to general jurisdiction under the 'at home' standard discussed in Daimler and also are not subject to specific jurisdiction."

The plaintiffs argued that the defendants waived their jurisdictional defense by litigating the case on its merits for more than a decade.

Kessler agreed.

She noted that more than a decade ago, the Palestinian Authority and PLO moved to dismiss the case for lack of subject matter jurisdiction and failure to state a claim, but did not raise their personal jurisdiction defense at the time.

The defendants attempted to address this by arguing that until the Supreme Court announced the "at home" rule, their jurisdictional defense was simply not available.

But Kessler noted that between 2002 and 2011, the defendants contested the court's personal jurisdiction on multiple occasions despite the fact that they never moved for dismissal on that basis.

"During the same time period," she continued, "defendants - represented by the same counsel also challenged personal jurisdiction in several related cases."

As a result, she said, their current argument that the personal jurisdiction defense was unavailable to them prior to the Supreme Court's ruling in Daimler "rings hollow."

"Even if defendants were correct that a legal basis to challenge the Court's jurisdiction did not exist until the announcement of the 'at home' rule (which, as discussed above, is entirely inconsistent with their behavior in this and other cases), they are flat-out wrong that Daimler was the genesis of that rule," Kessler wrote.

"The 'at home' standard was unmistakably announced in Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011), more than two and a half years before defendants filed the instant motion. Therefore, as discussed below, even if defendants had not waived the defense under Rule 12 (h) ( 1) (A), they have waived it by failing to promptly assert it after Goodyear."

She continued: "Defendants did not invoke the 'at home' rule as soon as Goodyear made that argument cognizable. Instead, they litigated this case on its merits for more than two and a half years and asked the Court to grant summary judgment in their favor before ever seeking dismissal on jurisdictional grounds."

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