Shatsky v. Syrian Arab Republic

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SHABTAI SCOTT SHATSKY, et al., )
Plaintiffs, §
v. § Civil Case No. 02-2280 (RJL)
PALESTINE LIBERATION ORGANIZATION §
and PALESTINIAN AUTHORITY, § F I L E D
Defendants. JL ) JUN 2 0 2017
MEMORANDUM OPINION 6°33£'€;?a?il‘%gi‘.§§?%'§l.%.‘§la

(June Z_Q, 2017) [Dkts. ##247, 340]

On February l6, 2002, a suicide bomber detonated an explosive device inside a
crowded pizzeria in the West Bank village of Karnei Shomron. The blast killed two people,
both U.S. nationals, and Wounded thirty others, including four other U.S. nationals. The
U.S. victims and their personal representatives initiated the instant suit against the
Palestinian Authority (“PA”) and the Palestine Liberation Organization (“PLO”)
(collectively, “defendants”), alleging that the bombing Was enabled by those entities, and
asserting violations of the Anti-Terrorism Act, 18 U.S.C. §§ 2331-2339D, and related
common law torts. Before the Court is defendants’ Motion for Summary Judgment [Dkt.
#247].' Also before the Court is plaintiffs’ Motion to Strike Defendants’ Personal
Jurisdiction Argument from Defendants’ Supplemental Brief in Support of Summary
Judgment and for Leave to File Supplemental Summary Judgment Briefing [Dkt. #340].

Upon consideration of the pleadings, relevant law, and the entire record herein, the Court

will DENY plaintiffs’ motion, GRANT defendants’ motion, and enter judgment for the

defendants.

BACKGROUND

A. Factual Background1
On February 16, 2002, Sadeq Ahed Mahmoud Abdel Hafez (“Hafez” or “Sadeq

Hafez”) detonated an explosive device that killed Rachel Thaler and Keren Shatsky, both
U.S. nationals Pls.’ Reconstituted Statement of Mat. Facts 11 5 (“Pls.’ SOF”) [Dkt. #331];
Defs.’ Resp. to Pls.’ Reconstituted Statement of Purported Mat. Facts 11 5 (“Defs’ Resp.
SOF”) [Dkt. #332-1]; Defs.’ Statement of Mat. Facts 1[ 7 (“Defs.’ SOF”) [Dkt. #247-5];
Pls.’ Resp. to Defs.’ Statement of Mat. Facts 11 7 (“Pls.’ Resp. SOF”) [Dkt. #331]. It injured
U.S. nationals Leor Thaler, Hillel Trattner, Steven Braun, and Chana Friadman. Defs.’
SOF ll 7; Pls.’ Resp. SOF il 7. It also wounded Ronit Trattner, Defs.’ SOF 1 7; Pls.’ Resp.
SOF ‘H 7, and, according to contemporaneous press reports, approximately twenty-five
other persons who are not involved in this case, see Pls.’ Ex. 22 [Dkt. #330-22].
Defendants are the PA and PLO. The PA is a government established by the 1993
Oslo Accords between Israel and the PLO that administers civilian and internal security
services in parts of the West Bank and the Gaza Strip. Defs.’ SOF 7 2; Pls.’ Resp. SOF

7 2; Livnat v. Palestinian Auth., 851 F.3d 45, 47 (D.C. Cir. 2017). The PLO Was founded

' The facts in this section are drawn from the parties’ reconstituted briefs, statements of fact, and
accompanying exhibits Some of the items treated as fact here have been stipulated or conceded by the
parties for the purpose of summary judgment only. See Fed. R. Civ. P. 56(c)(l)(A). Some of the other
items recounted in this section are in dispute, and proof depends on whether certain exhibits are admissible
under the Federal Rules of Evidence, an issue the Court, not a jury, must decide. See Fed. R. Evid. 104(a).
Because the resolution of defendants’ motion turns in large part on the admissibility of this evidence, I
include these disputed facts and exhibits here in order to provide the background for my evidentiary rulings

2

in 1964 by Egypt and the Arab League and is the international representative of the
Palestinian people. Defs.’ SOF 1 l; Pls.’ SOF 1 14. It is recognized by the United States
as a Foreign Mission pursuant to Section 205 of the Foreign Missions Act, 22 U.S.C.
§ 4305. See 111 re Desz'gnation and Delerminatl`on, Pub. Notice 2035, 59 Fed. Reg. 37121-
03 (U.S. Dep’t of State, July 20, l994). The PLO is comprised of seven “factions”
including, as relevant here, the Popular Front for the Liberation of Palestine (“PFLP”).
Pls.’ SOF 1 2; Defs.’ Resp. SOF 1 2. The PFLP has been designated by the United States
as a Foreign Terrorist Organization pursuant to Section 219 of the Immigration and
Nationality Act, 8 U.S.C. § 1189. Pls.’ SOF 1 10; Defs.’ Resp. SOF 1 lO; In re Review of
the Desl'gnall`on of Popular F rent for the Lz'beratl'on of Palestine (ana’ Other Aliases) as a
Foreign Terrorz`sl Organization, Pub. Notice 9124, 80 Fed. Reg. 25766-01 (U.S. Dep’t of
State, Apr. 27, 2015).2

Plaintiffs believe the Karnei Shomron bombing was planned and carried out by the
PFLP using resources provided by the PA and PLO. Pls.’ SOF 11 l~5. Plaintiffs allege
that the “mastermind behind the attack” was a “known PFLP military leader” named Ra’ed
Nazal. Pls.’ SOF 1 7. Several facts about Nazal are undisputed. He was hired by the PA
as a Captain in the Preventive Security Service (“PSS”) sometime prior to the bombing;
killed during an Israeli military raid (apparently unconnected to the events at issue in this

case) in April 2002; and posthumously promoted by the PA to the rank of Major. Pls.’

2 The parties in this case also describe the PFLP as comprised of both political and military wings
The PA and PLO claim to support only the political wing of the PFLP and to have outlawed its military
wing. Defs’ SOF 11 3-6. Plaintiffs dispute these contentions They assert, among other things, that “any
such outlawing of the military wing ofthe PFLP was in word only.” Pls.’ Resp. SOF 1 6. As my decision
turns on the issue of causation, discussed inj%z, I need not resolve this dispute.

3

SOF 11 9, 26, 36-37; Defs.’ Resp. SOF 11 9, 26, 36~37. lt is also undisputed that Nazal’s
employment with the PSS entitled him to receive a salary from the PA even though he
never reported to work, never received a uniform, and never was available to receive any
assignment Pls.’ SOF 1 28; Defs.’ Resp. SOF 1 28. According to defendants the purpose
of this no-show arrangement “was to control anti-Israeli violence by bringing suspected
and/or convicted militants inside the security or police forces where there would be a better
chance of reforming their behavior.” Defs.’ Resp. SOF 1 28. Plaintiffs, of course, disagree;
they say Nazal’s “j ob” was structured by the PA in a manner designed to leave him free to
pursue terrorist activities with the PFLP. Pls.’ Reconstituted Mem. of Law in Opp’n to
Defs.’ Mot for Summ. J. ll (“Pls’ Mem.”) [Dkt. #331]; Pls.’ SOF 1 28. Plaintiffs allege
that Nazal used this free time to plan the bombing and to recruit and prepare Haer as the
bomber. Pls.’ SOF 11 7_8.

Plaintiffs’ theory that Nazal planned the bombing on behalf of the PFLP is based
primarily on the statements of two individuals The first is a custodial statement given to
Israeli police by an individual named Mohammad Wasef Nazal (“Wasef’ or “Mohammad
Wasef”), an alleged member of the PFLP. In this statement, Wasef stated that he
introduced Sadeq Haer to Nazal in or about the first of part of 2000, and that he also
introduced other potential suicide bombers to Nazal. Pls.’ Ex. 13 [Dkt. #330-13]. Wasef
stated that Haer carried out the attack “in the name of the Popular Front” and that Nazal
sent Hafez to “the Balata Refugee Camp and there [Nazal’s] friend . . . prepared Sadeq
[Hafez] to carry out the attack and placed the explosive belt on Sadeq’s body.” Pls.’ Ex.

13, at 3. The second statement is the deposition testimony of Ibrahim Abdullah Hamad

4

Dahbour (“Dahbour”), Deputy Director of the PA’s General Intelligence Service (“GIS”)
Qalqilya Governate. Dahbour testified that there was information in GIS files and in media
reports connecting Nazal and Haer to the bombing and to each other. Pls.’ Ex. 4 [Dkt.
#330-4]. He also testified that an alleged militant named Jamal Hindi was with Haer prior
to the bombing. Pls.’ Ex. 4, at 141:22-142:1. In addition to the statements of these two
individuals, plaintiffs cite a PFLP website praising Nazal generally as a martyr for the
Palestinian cause. Pls.’ Ex. 17 [Dkt. #330-17].

The PA and PLO provided some funding to the PFLP and to certain individuals
during the relevant time periods See Pls.’ Mem. 10-18. Specifically, the PLO paid rent
for the PFLP office in Qalqilya, a city in close geographical proximity to Karnei Shomron,
from June 2000 through May 2002. Pls.’ SOF 11 40-43; Defs.’ Resp. SOF 11 40-43. This
payment was approved by Yasser Arafat. Pls.’ SOF 11 19, 41, 43; Defs.’ Resp. SOF 11
19, 41, 43. The PLO also paid for a car and apartment for Abdel Rahim Malouh, the
PFLP’s representative to the PLO Executive Committee. Pls.’ Mem. 29 (citing Pls.’ Ex.
5); Defs.’ Reconstituted Reply in Further Supp. of Their Mot. for Summ. J. 6 (“Defs.’
Reply”) [Dkt. #332]. The PA made payments to the families of Ra’ed Nazal and Sadeq
Hafez following their deaths, and to the families of Mohammad Wasef and Jamal Hindi
while they were detained in prison for unspecified activities Pls.’ SOF 11 5, 37, 50; Defs.’

Resp. SOF 11 5, 37, 50.

B. Procedural Background
Plaintiffs filed this lawsuit on November 18, 2002. In addition to the PA and PLO,

plaintiffs named various Syrian entities and individuals as defendants See generally
Compl. [Dkt. #3]. Only the PA and PLO now remain in this action.3

At the outset of this lawsuit, the PA and PLO failed to answer the complaint,
prompting the Clerk of Court to enter default against them in September 2003. The Court
vacated the default in 2004, see Min. Order (June 23, 2004)_, and denied a motion to dismiss
for lack of personal jurisdiction in 2005, see Min. Order (Feb. 7, 2005). Counsel for the
PA and PLO subsequently informed the Court that they intended only to litigate the
question of jurisdiction, possibly through an interlocutory appeal. See Tr. of Status Conf.,
at 11:21-12:li 16117_20 (Mar. 29, 2005) [Dkt. #56]. However, a motion seeking such an
appeal was never filed, and in April 2005, plaintiffs again obtained an entry of default from
the Clerk. Two years later, plaintiffs moved the Court for default judgment. Defendants,
by then having obtained new counsel, opposed plaintiffs’ motion, and the parties began
discovery. Defendants moved to vacate the Clerk’s entry of default. Plaintiffs, in turn,
moved to compel continued discovery. In a bench ruling following oral argument, the
Court denied plaintiffs’ motion to compel continued discovery and ordered them to respond
to defendants’ motion to vacate. See Tr. of Mot. Hr’ g at 23:3-8 (June 13, 2008) [Dkt. #95].

After briefing was complete, the Court again held oral argument, ultimately vacating the

3 As I have previously explained, see Mem. Order 2 & n.4 (Oct. 31, 2013) [Dkt. #249], plaintiffs
voluntarily dismissed the Syrian defendants and refiled those claims in a separate action that remains
pending before the Court as Shatsky v. Syrian Arab Republic, Civil Case No. 08-0496 (D.D.C).

6

Clerk’s second entry of default in a published memorandum opinion. See Shatsky v. Syrian
Arab Republl'c, 795 F. Supp. 2d 79, 85 (D.D.C. 2011) (“Shatsky I”).

Following vacatur of the second default, the Court adopted on joint motion of the
parties a scheduling order which mandated the completion of fact discovery by September
19, 2012. Sched. Order 1 5 (Sept. 19, 2011) [Dkt. #136]. Unfortunately, discovery did not
proceed smoothly. Plaintiffs “waited until the eleventh hour” to produce responsive
documents Shatsky v. SyrianArab Republic, 312 F.R.D. 219, 221 (D.D.C. 2015) (“Shatsky
II”). Indeed, although plaintiffs had, by the close of discovery, produced approximately
3,000 pages of material in response to defendants’ requests “[t]his proved to be just the
beginning of their discovery efforts” Ia’. at 222. “[I]n the weeks, months, and even years
after discovery closed, plaintiffs furnished an additional 6,627 pages of materials.” Id.
Meanwhile, and once again on joint motion by the parties, the Court had set a briefing
schedule for summary judgment, See Min. Order (June 26, 2013). Plaintiffs’ discovery
tactics would soon upend that schedule

On August 12, 2013, defendants filed the instant motion for summary judgment,
arguing that plaintiffs lack admissible evidence to prove the essential elements of their
claims See Mem. of P. & A. in Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Mem.”) [Dkt.
#247-1]. Plaintiffs filed their first opposition on November 12, 2013. Appended to the
opposition, however, was the Declaration of Attorney Robert J. Tolchin. Plaintiffs used
this declaration as a vehicle to authenticate reams of late-produced documents relied upon
in their brief. Defendants filed a motion for sanctions Following briefing and oral

argument on the motion for sanctions, the Court issued a published opinion ordering the

7

exclusion of seventy-three late-filed exhibits See Shatsky II, 312 F.R.D. at 229. The Court
gave plaintiffs the opportunity to reconstitute their opposition without the excluded
evidence, See id. On January 29, 2016, plaintiffs filed their reconstituted opposition. See
Pls.’ Reconstituted Mem. of Law in Opp’n to Defs.’ Mot for Summ. J. (“Pls.’ Mem.”) [Dkt.
#331]. Defendants timely replied. See Defs.’ Reconstituted Reply in Further Supp. of
Their Mot. for Summ. J. (“Defs.’ Reply”) [Dkt. #332]. The Court held oral argument on
July 26, 2016, inviting further briefing at the close of argument, which was promptly filed.
See Pls.’ Suppl. to July 26, 2016 Hr’g (“Pls.’ Suppl. Mem.”) [Dkt. #337]; Defs.’ Am. Suppl.
Br. in Supp. of Summ. J. (“Defs’ Suppl. Mem.”) [Dkt. #338-1]. The Court took
defendants’ motion under advisement shortly thereafter.

STANDARD OF REVIEW

A. Summary Judgment d

Summary judgment is appropriate only if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “A fact is material if it ‘might affect the outcome of the suit under the governing
law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”’ Steele v. Schafer, 535 F.3d 689, 692
(D.C. Cir. 2008) (quoting Ana’erson v. Lz°berty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Upon the filing of a motion for summary judgment, “[t]he task of the [district] court
is to review the factual material the parties present in support of and opposition to the
motion, in light of the parties’ legal claims and defenses and assess whether the record

contains disputes calling for resolution by a factfinder.” Johnson v. Perez, 823 F.3d 701,

8

705 (D.C. Cir. 2016). “In making that determination, the court must view the evidence in
the light most favorable [to the nonmoving party], draw all reasonable inferences in their
favor, and eschew making credibility determinations or weighing the evidence.” Calhozm
v. Johnson, 632 F.3d 1259, 1261 (D.C. Cir. 2011) (internal quotation marks omitted). The
movant may carry its initial burden by “pointing out to the district court[] that there is an
absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986); see also Fed. R. Civ. P. 56(c)(1). The non-moving party must then
come forward with “evidence showing that there is a triable issue as to an element essential
to that party’s claim.” Arrington v. United States, 473 F.3d 329, 335 (D.C. Cir. 2006)
(citing Celotex, 477 U.S. at 322). “While a nonmovant is not required to produce evidence
in a form that would be admissible at trial, the evidence still must be capable of being
converted into admissible evidence.” Gleklen v. Democratz'c Cong. Campaign Comm.,
Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000) (emphasis removed). “Otherwise, the objective
of summary judgment-to prevent unnecessary trials_would be undermined.” Icl.
District courts are assigned the task of deciding whether evidence would be
admissible at trial. See Fed. R. Evid. 104(a); Gz`lmore v. Palestinian laterim Self-Gov’t
Aulh., 843 F.3d 958, 968-69 (D.C. Cir. 2016) (“Gilmore II”). “ln so deciding, the court is
not bound by evidence rules, except those on privilege.” Fed. R. Evid. 104(a). Decisions
pertaining to the admissibility of evidence must be established by a preponderance of proof.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 n.10 (1993). If evidence is
determined by the court to be hearsay, then, absent an applicable hearsay exception, the

evidence is not capable of being converted into admissible evidence and cannot be

9

considered by the court in evaluating a motion for summary judgment See Gilmore II,
843 F.3d at 973 (citing Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007)); Gleklen,
199 F.3d at 1369 (“Verdicts cannot rest on inadmissible evidence.”).

B. The Anti Terrorism Act

The ATA authorizes “[a]ny national of the United States injured in his or her person
. . . by reason of an act of international terrorism, or his or her estate, survivors, or heirs”
to sue “in any appropriate district court of the United States and . . . recover threefold the
damages he or she sustains.” 18 U.S.C. § 2333(a). On its face, this cause of action requires
a plaintiff to prove three things: (1) injury to a U.S. national, (2) causation, and (3) an act
of international terrorism. The statute defines “international terrorism” as activities that

(A) involve violent acts or acts dangerous to human life that are a violation
of the criminal laws of the United States or of any State, or that would be a
criminal violation if committed within the jurisdiction of the United States
or of any State;

(B) appear to be intended_(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination,
or kidnapping; and

(C) occur primarily outside the territorial jurisdiction of the United States, or
transcend national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to intimidate or coerce, or
the locale in which their perpetrators operate or seek asylum[.]

18 U.S.C. § 2331(1).
“In other words,” to prevail in showing an act of international terrorism that is

cognizable under the statute, “a plaintiff must prove that the defendant would have violated

any one of a series of predicate criminal laws had the defendant acted within the jurisdiction

10

of the United States.” Gilmore v. Palestinian Interim Self-Gov ’tAuth., 53 F. Supp. 3d 191,
200 (D.D.C. 2014) (“Gilmore I”) (quoting Estate ofParsons v. Palestinian Auth., 651 F.3d
118, 122 (D.C. Cir. 2011)), ajj"cl, 843 F.3d 958 (D.C. Cir. 2016). “In addition, the plaintiff
must meet the territorial requirements set forth in Section 2331(1)(C) and prove that the
conduct constituting the predicate criminal offense satisfies one of three intent
requirements in Section 2331(1)(B).” Id.

ANALYSIS

Defendants advance three arguments in support of summary judgment, First, they
contend that the Court lacks personal jurisdiction. Second, they argue that they are entitled
to summary judgment on the ATA claims because plaintiffs lack enough admissible
evidence to prove the essential elements of these claims Third, defendants argue that they
are entitled to summary judgment on the non-federal tort claims because they lack legal
capacity for suit as to these claims l will address each argument in turn.

A. Personal Jurisdiction

Defendants once again raise the issue of personal jurisdiction. See Tr. of Mot. Hr’ g
52:1-52:6 (July 26, 2016) [Dkt. #335]; Defs.’ Suppl. Mem. 1-3. As such, 1 will address
this argument first. See Sinochem lnt’l Co. v. Malay. Int’l Shippz`ng Corp., 549 U.S. 422,
430-31 (2007) (“[A] federal court generally may not rule on the merits of a case without
first determining that it has jurisdiction over the category of claim in suit (subject-matter
jurisdiction) and the parties (personal jurisdiction).”).

I have on several occasions over the course of this litigation determined that

defendants waived their challenge to personal jurisdiction by “repeatedly manifest[ing]

ll

their consent to the Court’s jurisdiction through their conduct.” Mem. Order 2 (Oct. 29,
2014) [Dkt. #300]; see also Min. Order (July 12, 2016); Min. Order (Feb. 7, 2005).
Defendants contend, however, that 1 should reevaluate these rulings in light of a recent
decision by the Second Circuit vacating a determination by the Southern District of New
York that it had personal jurisdiction over the PA and PLO. See Wala’man v. Palestine
Liberation Org., 835 F.3d 317 (2d Cir. 2016). l disagree. As our Circuit recently
explained, the vacatur decision in Wala'man resulted from a change in Second Circuit
precedent pertaining to general personal jurisdiction. See Gilmore II, 843 F.3d at 965.
Under the old Second Circuit precedent, in effect when that litigation began, the PA and
PLO lacked a legal basis for asserting their personal jurisdictional defense; thus, when an
intervening Supreme Court decision cast doubt on the old precedent, the defense was made
“available” for the first time, and the Second Circuit held that the PA and PLO had not
waived the defense by not asserting it when it was unavailable See ia’. Defendants do not
face similar circumstances in this case. My prior determinations have not rested on the
scope of general personal jurisdiction but, as noted above, on defendants having
“repeatedly manifested their consent to the Court’s jurisdiction through their conduct.”
Mem. Order 2 (Oct. 29, 2014). Moreover, unlike the Second Circuit, “[n]o similar
precedent existed in this Circuit and, therefore, the ‘legal basis’ for” a similar defense was

never unavailable Gz'lmore II, 843 F.3d at 965 (affirming personal jurisdiction over the

12

PA and PLO). In other words, Wala’man is simply not relevant to the personal jurisdiction
issues raised in this litigation. My prior rulings remain correct.4
Having confirmed my jurisdiction over defendants, I will now proceed to the merits

B. Anti Terrorism Act Claims

Defendants contend that they are entitled to summary judgment because plaintiffs
lack sufficient admissible evidence to prove the essential elements of their ATA claims
Specifically, defendants claim that the evidence would not permit a reasonable jury to find
that their actions proximately caused the Karnei Shomron suicide bombing, nor that they
possessed the degree of scienter necessary to be held liable for any act of international
terrorism, Because, as discussed below, plaintiffs do indeed lack sufficient admissible
evidence that would permit them to establish causation under the ATA, l will grant
summary judgment for the defendants without reaching the question of scienter.

1. The ATA’s Causation Requirement

The private civil cause of action created by the ATA, quoted in full above,

authorizes suit for treble damages by any United States national injured “by reason of” an

4 Plaintiffs assert that l should strike defendants’ personal jurisdiction defense from their
supplemental papers See Pls.’ Mot. to Strike Defs.’ Personal Jurisdiction Argument from Defs.’ Suppl.
Br. in Supp. of Summ. J. and for Leave to File Suppl. Summ. J. Br’ g 1-4 [Dkt. #340]. I will deny plaintiffs’
motion to strike, but, as discussed, will reject defendants’ jurisdictional challenge Plaintiffs also seek leave
to file additional summary judgment briefing “to supplement their summary judgment opposition filings
with the evidence that the Court excluded in 2015 as late disclosed but which is relevant to the intent,
proximate cause[,] and material support issues.” Id. at 2. They argue supplemental briefing is necessary
because defendants’ reconstituted reply, in plaintiffs’ view, cites “new evidence” not disclosed during the
discovery phase of this litigation. Mem. in Supp. of Pls.’ Mot. to Strike Defs.’ Personal Jurisdiction
Argument from Defs.’ Suppl. Br. in Supp. of Summ. J. and for Leave to File Suppl. Summ. J. Br’g 4-17
[Dkt. #341]. I disagree There is no need for additional supplemental briefing, and I will deny plaintiffs’
request for leave to provide it. ln the interest of fairness however, and out of an abundance of caution, l
will not rely on any documents presented by defendants for the first time in their reconstituted reply.

13

act of international terrorism, 18 U.S.C. § 2333(a). Defendants contend, and plaintiffs
purport to concede, that this language establishes proximate cause as the appropriate
standard. Defs.’ Mem. 22-23; Pls.’ Mem. 35-36. Despite this apparent agreement, it is
clear both from the parties’ briefs and from their positions at oral argument that they have
vastly different understandings of what proximate cause requires As our Court of Appeals
has not yet had opportunity to construe the phrase “by reason of’ in the context of
adjudicating an ATA claim, l must do so before turning to the question of whether a
reasonable jury could find that the evidence here meets that standard.

As an initial matter, the parties are right to recognize that the ATA establishes
proximate cause as the applicable standard under the statute. “It is a ‘well established
principle of [the common] law, that in all cases of loss, we are to attribute it to the proximate
cause, and not to any remote cause.”’ Bank of Am. Corp. v. Cily of Miami, Fla., 137 S. Ct.
1296, 1305 (2017) (quoting Lexmark Int’l, lnc. v. Statl`c Control Components, Inc., 134 S.
Ct. 1377, 1390 (2014)). Courts generally assume Congress is familiar with the common-
law rule and does not mean to displace it sub silentio when it creates a federal cause of
action. See id. (construing Fair Housing Act to incorporate the common law rule);
Lexmark, 134 S. Ct. at 1390 (construing Lanham Act to incorporate the common law rule).
The ATA_which creates a federal cause of action akin to a tort action_is no exception.
See, e.g., Wultz v. lslamz`c Republl'c oflran, 755 F. Supp. 2d 1, 42 (D.D.C. 2010) (holding
ATA requires a showing of proximate cause); Burnett v. Al Baraka Inv. & Dev. Corp., 274
F. Supp. 2d 86, 105~06 (D.D.C. 2003) (same). “Proximate-cause analysis is controlled by

the nature of the statutory cause of action.” Bank of Am., 137 S. Ct. at 1305. “The question

14

it presents is whether the harm alleged has a sufficiently close connection to the conduct
the statute prohibits.” Id.

That said, 1 turn to the dispute between the parties Defendants contend that liability
under the proximate cause element of the ATA obtains only where a defendant’s actions
were a “substantial factor in the sequence of responsible causation” and the plaintiffs
“injury was reasonably foreseeable or anticipated as a natural consequence” of those
actions Defs.’ Reply 12 (quoting Rolhstez`n v. UBSAG, 708 F.3d 82, 97 (2d Cir. 2013));
see also Defs.’ Mem. 22~23; Tr. of Mot. Hr’g 15:24-18:18 (July 26, 2016). This is a
traditional proximate cause test that has been applied in our Circuit outside of the ATA
context. See Novak v. Capl`tal Mgmt. & Dev. Corp., 570 F.3d 305, 312 (D.C. Cir. 2009)
(applying a “substantial factor” test to determine whether absence of security personnel
proximately caused injuries suffered at the hands of third parties); Lopez v. Council on
Am.-Islamic Relations Actz`on Network, lnc., 657 F. Supp. 2d 104, 110 (D.D.C. 2009)
(recognizing violations of the Racketeer Influenced and Corrupt Organizations Act
(“RICO”) “proximately cause a plaintiffs injury if they are a substantial factor in the
sequence of responsible causation, and if the injury is reasonably foreseeable or anticipated
as a natural consequence.”), aff’d, 383 F. App’x 1 (D.C. Cir. 2010). In Rothstein, the
Second Circuit held that Congress incorporated this test into the text of the ATA. The court
explained that when Congress enacted the ATA in 1992, “[t]he ‘by reason of` language
had a well-understood meaning, as Congress had used it in creating private rights of action
under RICO and the antitrust laws, and it had historically been interpreted as requiring

proof of proximate cause.” 708 F.3d at 95 (citing, inter alia, Holmes v. Sec. Inv’r Prot.

15

Corp., 503 U.S. 258 (1992)). “[l]f, in creating civil liability through § 2333, Congress had
intended to allow recovery upon a showing lower than proximate cause, we think it either
would have so stated expressly or would at least have chosen language that had not
commonly been interpreted to require proximate cause for the prior 100 years.” Ia’. Thus,
the court concluded, the ATA requires a showing of proximate cause “as that term is
ordinarily used.” Ia’.; accord Owens v. BNP Paribas S.A., No. CV 15-1945 (JDB), 2017
WL 394483, at *9 (D.D.C. Jan. 27, 2017) (following Rothstel`n), appeal docketed, No. 17-
7037 (D.C. Cir. Feb. 28, 2017).

Not surprisingly, plaintiffs reject the Second Circuit’s approach. In their view, the
traditional understanding of proximate cause “create[s] a higher bar for causation” than the
ATA requires Tr. of Mot. Hr’g 39:18 (July 26, 2016); see also Pls.’ Mem. 35-36.
Plaintiffs cite favorably to a pair of cases from the Seventh Circuit which adopted a
“relaxed” standard of causation under the ATA in order to account for “the fungibility of
money.” Boz`m v. Holy Land Founa’. for Relief & Dev., 549 F.3d 685, 697~98 (7th Cir.
2008) (en banc); see also Hussal'n v. Mukasey, 518 F.3d 534 (7th Cir. 2008). In these cases,
the Seventh Circuit took the view that a lesser standard was permissible in ATA cases
involving allegations of financial support to organizations that engage in terrorism because
“[a]nyone who knowingly contributes to the nonviolent wing of an organization that he
knows to engage in terrorism is knowingly contributing to the organization’s terrorist
activities.” Boz'm, 549 F.3d at 698. So, for example, “[i]f you give money (or raise money
to be given) for the teaching of arithmetic to children in an elementary school run by

Hamas, you are providing material support to a terrorist organization even though you are

16

not providing direct support to any terrorist acts.” Hussaz`n, 518 F.3d at 538. The Seventh
Circuit reasoned that such support was enough to show causation under the statute “because
otherwise there would be a wrong and an injury but no remedy because the court would be
unable to determine which wrongdoer inflicted the injury.” Boim, 549 F.3d at 697.
Notwithstanding the delicate policy concerns raised by the Seventh Circuit and by
plaintiffs here, in my view the Second Circuit’s interpretation is more faithful to the words
Congress chose when enacting the ATA. That judgment will therefore control my decision.
See Cent. Bank of Denver, N.A. v. Fl`rsl Inlerstate Bank ofDenver, N.A., 511 U.S. 164, 188
(1994) (“Policy considerations cannot override our interpretation of the text . . . .”). ln
Rothstein, the Second Circuit carefully documented the interpretation given by the
Supreme Court and the lower courts, for well over a century, to instances of the phrase “by
reason of’ where it appears in federally created private rights of action. In each instance,
courts had construed this language as setting forth a traditionally rigorous proximate cause
requirement See Holrnes, 503 U.S. at 268 (RICO); Assocz`ated Gen. Contractors of Cal.,
Inc. v. Cal. State Councz'l ofCarpenters, 459 U.S. 519, 534-35 (1983) (Clayton Act); Loeb
v. Eastman Koa’ak Co., 183 F. 704, 709 (3d. Cir. 1910) (Sherman Act). Congress “used
the same words” when it enacted the ATA, “and we can only assume it intended them to
have the same meaning that courts had already given them.” Holmes, 503 U.S. at 268; see
also Perry Capl'tal LLC v. Mnuchin, 848 F.3d 1072, 1122 (D.C. Cir. 2017) (“[l]fa word is

obviously transplanted from another legal source, whether the common law or other

legislation, it brings the old soil with it.” (quoting Felix Frankfurter, Some Reflections on

17

the Reaa’z`ng of Statutes, 47 Colum. L. Rev. 527, 537 (1947))).5 Accordingly, I conclude
that § 2333 of the ATA requires proof of proximate cause, as that term is typically defined.
A defendant proximately causes an act of international terrorism if his actions are a
substantial factor in the sequence of responsible causation, and if the injury is reasonably
foreseeable or anticipated as a natural consequence of those actions See, e.g., Rothstein,
708 F.3d at 97; Lopez, 657 F. Supp. 2d at 110.

2. Plaintiffs’ Evidence

Having resolved the statutory interpretation question raised by the parties’
competing views of proximate cause, I now must determine whether any reasonable jury
could find the PA and PLO legally responsible for the bombing on the evidence available
in this case. In response to defendants’ arguments that there is insufficient evidence to
establish proximate cause, see Defs.’ Mem. 22_23, plaintiffs claim that there is a triable
issue, even as proximate cause is ordinarily understood. Specifically, plaintiffs claim that
(1) “the salary paid to Ra’ed [Nazal],” (2) “the rent paid for the Qalqilya PFLP office,” and
(3) the “payments to the families” of Ra’ed Nazal, Mohammad Wasef, Jamal Hindi, and
Sadeq Hafez, “went directly towards facilitating the attack that caused Plaintiffs’ injuries.”

Pls.’ Mem. 37_38.

5 Even apart from the well-established historical interpretation, at least one court in our District has
found that “the words ‘by reason of` indicate that the adverse action must be the principal cause_lhe
reason_for the loss.” Breea'en v. Novartis Pharm. Corp., 714 F. Supp. 2d 33, 36 (D.D.C. 2010) (holding
Family Medical Leave Act requires proximate cause), an’d on other grounds, 646 F.3d 43 (D.C. Cir. 201 l).

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a. Nazal’s Salary

Plaintiffs allege, and defendants concede, that the PA paid a salary to Ra’ed Nazal.
Pls.’ SOF 1 28; Defs.’ Resp. SOF 1 28. Even when viewed in the light most favorable to
plaintiffs however, this fact is only relevant to the issue of causation if there is admissible
evidence that connects Nazal to the bombing. Plaintiffs appear to be relying on three
exhibits to make that connection. See Pls.’ SOF 11 7-8 (citing Pls.’ Exs. 4, 13, and 17).6
Unfortunately for plaintiffs all three are inadmissible hearsay. How so?

First, plaintiffs cite portions of a custodial statement given to Israeli police by
Mohammad Wasef, which implicates Nazal in the bombing. See Pls.’ Ex. 13. These out-
of-court statements offered to prove the truth of the matters asserted, are hearsay. See Fed.
R. Evid. 801(c). Contrary to plaintiffs’ contentions they are not excepted from the hearsay
rule as statements against interest pursuant to Federal Rule of Evidence 804(b)(3).
Plaintiffs have offered no reason to think that Wasef is “unavailable as a witness,” as that
rule requires And, more fundamentally, the statements are not against Wasef’s interests
Wasef does not take any responsibility for the bombing; he blames Nazal (among other
individuals). His purported “confession” is thus exculpatory, not inculpatory. “As the
Supreme Court has held, Rule 804(b)(3) ‘does not allow admission of non-self-inculpatory

statements even if they are made within a broader narrative that is generally self-

6 Plaintiffs’ brief refers broadly to “the evidence . . . discussed throughout this Opposition” but does
not cite to any specific evidence when discussing the purported relevance of Nazal’s salary to the issue of
causation. Pls.’ Mem. 37. Although “it is not the Court’s role to mine the record in an effort to identify
potentially helpful evidence not identified by the parties” Achagzai v. Broad. Bd. of Gov ’s, 170 F. Supp.
3d 164, 178 (D.D.C. 2016); see also Allaithi v. Rumsfeld, 753 F.3d 1327, 1334 (D.C. Cir. 2014), I have
done my best_based on review of plaintiffs’ entire opposition, the record, and the exhibits highlighted in
plaintiffs’ reconstituted statement of material facts-to identify evidence plaintiffs believe is relevant

19

inculpatory.”’ Gilmore I, 53 F. Supp. 3d at 211 (quoting Williamson v. United States, 512
U.S. 594, 600-01 (1994)).

Nor do the statements Wasef made qualify under the exceptions for public or
business records merely because they are contained within an Israeli police report See
Fed. R. Evid. 803(6), (8). To be sure, the report itself could likely come in under one of
these exceptions if it were properly “authenticated at trial.” See Pls.’ Mem. 25. lt would
then be “presumed that [the Israeli police officer] accurately transcribed and reported
[Wasef`s] story,” Latif v. Obarna, 666 F.3d 746, 768 (D.C. Cir. 2011) (quoting United
States v. Smith, 521 F.2d 957, 964-65 (D.C. Cir. 1975)), and the report could be used to
show, for example, “the date [the] crime was reported, or the fact that it was reported at
all,” Srnith, 521 F.2d at 964. But it could not be used to prove the truth of Wasef’ s story.
A “complaining witness’[s] description of the crime, recorded by the police officer in his
report, is not made in the regular course of the witness’[s] business and does not deserve
the presumption of regularity accorded a business record.” Id.; see also Parsons v.
Honeywell, lnc., 929 F.2d 901, 907 (2d Cir. 1991) (“[I]t is well established that entries in
a police report which result from the officer’s own observations and knowledge may be
admitted [as a public record under Fed. R. Evid. 803(8)] but that statements made by third
persons under no business duty to report may not.”). There is no evidence, and plaintiffs
do not argue, that Wasef made his statements in the regular course of his business or under
some legal duty to report “Therefore, that part of the [lsraeli police report] containing

[Waser] description is not admissible as substantive evidence.” Smith, 521 F.2d at 964.

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Second, plaintiffs cite testimony by lbrahim Abdullah Hamad Dahbour asserting
that Nazal was “involved” in the bombing. Pls.’ Ex. 4, at 87:4_6, 87:23~91:8. These
statements are also inadmissible When Dahbour was asked how he knew of Nazal’s
involvement with the bombing, he said “I know from the media.” Id. at 88:19. He also
suggested that he may have learned about it from his review of intelligence files kept by
the GIS. Ia’. at 85:9-12. ln either case, the statements are hearsay if offered to prove
Nazal’s role in the bombing. “[C]ourts within this Circuit have consistently barred
newspaper articles from introduction as evidence due to the fact that they constitute
inadmissible hearsay.” Atkins v. Fischer, 232 F.R.D. 116, 132 (D.D.C. 2005); see also
Konah v. D.C., 971 F. Supp. 2d 74, 80 (D.D.C. 2013); Hutira v. Islamic Republic of[ran,
211 F. Supp. 2d 115, 123-24 (D.D.C. 2002). And courts in our Circuit have likewise
considered intelligence sources hearsay where, as here, there is no information given to
support their bottom-line conclusions See Parhat v. Gates, 532 F.3d 834, 847 (D.C. Cir.
2008) (acknowledging certain “intelligence reports plainly are” “hearsay evidence”);
Estate of Parsons v. Palestinian Auth., 715 F. Supp. 2d 27, 34 (D.D.C. 2010) (granting
summary judgment where anonymous intelligence report was inadmissible), a/Y’d, 651
F.3d 118 (D.C. Cir. 2011). The statements by Dahbour are thus inadmissible to prove
Nazal’s role in the bombing.

Third, plaintiffs cite a seven-page translated printout from the PFLP website
identifying Nazal as a PFLP military leader and crediting him with various militant and/or
terrorist actions See Pls.’ Ex. 17. These pages make no mention of Karnei Shomron or

the bombing. Moreover, although the webpages appear intended to honor Nazal for various

21

(mis)deeds in service to the Palestinian cause, they “offer no information explaining who
made the[se] findings or how they were made.” Gilmore II, 843 F.3d at 969 (affirming
exclusion of pages from the lsrael Ministry of Foreign Affairs website). Without such
information, l cannot conclude that these pages set forth matters personally observed by
any member of the PFLP, let alone matters the individual would have a legal duty to report,
or factual findings from a legally authorized investigation. See Fed. R. Evid. 803(8). For
the same reason, 1 cannot conclude that the writer is unavailable or that the statements are
against interest See Fed. R. Evid. 804(b)(3). The webpages are thus inadmissible hearsay.

ln short, plaintiffs have identified no admissible evidence supporting their theory
that Nazal planned the bombing. Without such evidence, no reasonable jury could
conclude that the PA proximately caused the bombing by paying Nazal a salary.

b. Rent Payment and Support

Plaintiffs also allege, and defendants concede, that the PLO paid rent for the PFLP
office in Qalqilya through May of 2002. Pls.’ SOF 1 40; Defs.’ Resp. SOF 1 40.
Defendants argue that this fact is immaterial because plaintiffs have not proffered evidence
demonstrating a connection between the payment and the bombing, for example, “any
evidentiary support that the PFLP office in Qalqilya, or anyone working in that office, had
any involvement in the Karnei Shomron bombing.” Defs.’ Resp. SOF 1 42. Plaintiffs
respond that “[g]iven Qalqilya’s [geographic] proximity to Karnei Shomron, a jury might
reasonably conclude, based on the preponderance of the evidence standard, that the
particular support at issue . . . went to advance the particular suicide operation at issue.”

Pls.’ Mem. 37; see also id. (arguing “spatial and temporal closeness . . . alone might lead

22

a jury to” find proximate causation) (emphasis added); Pls.’ Suppl. Mem. 12-13
(“Defendants’ material support has a strong temporal and geographical link to the
bombing.”). In other words plaintiffs posit a connection between the rent payment and
the bombing based solely on the fact that Qalqilya is nearby to Karnei Shomron. To say
the least, that is a stretch !

However, assuming it were proved “that the suicide bombing was in fact, carried
out by a militant wing of the PFLP,” Shatsky I, 795 F. Supp. 2d at 84, plaintiffs’ proffered
evidence still remains insufficient to establish proximate cause, I have already found that
the ATA requires a defendant’s acts to be a “substantial factor” in the sequence of
responsible causation. Under that standard, no reasonable jury could find that the PLO’s
payment of rent for the Qalqilya office “caused” the bombing simply because that office is
located in a place physically “proximate” to the attack. The cases cited by plaintiff are
distinguishable because they involved no such argument, and also because, unlike this case,
they concerned contributions in the “millions of dollars,” Strauss v. Credit Lyonnais, S.A.,
925 F. Supp. 2d 414, 432 (E.D.N.Y. 2013), or applied a “relaxed” standard of causation,
Boim, 549 F.3d at 697.

Nor are plaintiffs helped by their assertion that “the evidence establishing the
provision of material support in this case,” taken as a whole, “is easily traceable from the
Defendants to . . . the Qalqilya cell” of the PFLP. Pls.’ Mem. 37. Indeed, to recite
plaintiffs’ argument is almost sufficient to refute it, as the argument “wrongly equates
injury ‘fairly traceable’ to the defendant[s] with injury as to which the defendant[s’] actions

are the very last step in the chain of causation.” Bennett v. Spear, 520 U.S. 154, 168-69

23

(1997). That error is fatal to plaintiffs’ traceability argument because “the burden of
showing that plaintiffs’ injuries were proximately caused by [the alleged support] is higher
than the burden of showing that plaintiffs’ injuries were fairly traceable to” that support
Rothstein, 708 F.3d at 96; accord Lexrnark, 134 S. Ct. at 1391 (holding plaintiffs have
standing but have not shown proximate causation); Bank of Am., 137 S. Ct. at 1306 (same).
Plaintiffs’ traceability argument thus does nothing to alter my conclusion that the proffered
evidence of support to the Qalqilya office is insufficient to establish the existence of the
proximate cause element of plaintiffs’ case,
c. Family Payments

Plaintiffs also allege, and defendants concede, that the PA made payments to the
families of Ra’ed Nazal, Mohammad Wasef, Jamal Hindi, and Sadeq Hafez. See Pls.’ SOF
11 37, 50; Defs.’ Resp. SOF 11 37, 50. As plaintiffs have not identified any admissible
evidence linking Nazal, Wasef, or Hindi to the Karnei Shomron bombing, I have no trouble
concluding that payments to the families of these individuals could not have proximately
caused the bombing.7

The payments to the family of Hafez undoubtedly pose a closer question.
Defendants have conceded for the purpose of resolving this motion that Hafez was the
bomber, Defs.’ Resp. SOF 1 5, and evidence in the record shows that the PA’s Ministry of

Social Affairs allocated his family 600 shekels per month following the so-called

7 In regard to Jamal Hindi, plaintiffs point to a document produced by defendants which states that
Hindi was imprisoned by the Israelis in 2002. See Pls.’ SOF 1 7 (citing Pls.’ Ex. 62 [Dkt. #330-45]). There
is no information in that exhibit, however, concerning the reason Hindi was imprisoned

24

“[m]artyrdom operation at the Karnei Shomron Settlement,” Pls.’ Ex. 25 (PA payment
record) [Dkt. #331-1]. This evidence is to say the least, disturbing But, without more,
these after-the-fact payments are not sufficient for a reasonable jury to conclude that
defendants proximately caused the Karnei Shomron bombing. See Sokolow v. Palestine
Liberation Org., 60 F. Supp. 3d 509, 517 n.11 (S.D.N.Y. 2014) (“A showing of support-
even post-attack financial support to the families of terrorists--is not sufficient to
demonstrate that Defendants were somehow responsible for the attacks.”). 1 have already
found that the ATA requires plaintiffs to show that the defendants’ acts Were a “substantial
factor” in the sequence of responsible causation. Here, plaintiffs have pointed to no
evidence suggesting that Hafez knew his family would receive martyrdom payments or
that Hafez was motivated by the prospect of such payments Without such evidence, l am
forced to conclude that no reasonable jury could rule in favor of plaintiffs based on
these payments

3. Non-Federal Tort Claims

Defendants contend that they are entitled to summary judgment on plaintiffs’ non-
federal tort law claims because the PA and PLO lack the legal capacity to be sued in tort.
Defs.’ Mem. 30. I agree.

The parties acknowledge that the PA and PLO “both are unincorporated
associations.” Wala’man, 835 F.3d at 332; accord Safra v. Palestinian Auth., 82 F. Supp.
3d 37, 48 (D.D.C. 2015), a]j”’dsab norn. Livnat v. Palestinian Auth., 851 F.3d 45 (D.C. Cir.
2017). Pursuant to the Federal Rules of Civil Procedure, the legal capacity of
unincorporated associations is determined “by the law of the state where the court is

25

located.” Fed. R. Civ. P. 17(b)(3). ln the District ofColumbia, unincorporated associations
cannot be sued in their own name. See, e.g., Sisso v. Islamic Republic of Iran, 448 F. Supp.
2d 76, 91 (D.D.C. 2006) (collecting cases and dismissing non-federal claims against
Hamas). “And, as far as this Court is aware, there is no recognized exception to that rule
for situations such as this where there is a non-federal claim against the unincorporated
association that arises out of the same core of operative facts as a federal claim against the
organization and capacity to be sued exists for the latter but not the former.” Id. Thus
because the PLO and the PA are unincorporated associations that “lack legal capacity to
be sued, they are entitled to judgment as a matter of law” on plaintiffs’ common law tort
claims EEOC v. St. Francis Xavier Parochial Sch., 77 F. Supp. 2d 71, 79 (D.D.C. 1999),
ajjf’d, 254 F.3d 315 (D.C. Cir. 2000).

Plaintiffs argue that defendants waived their capacity defense by not pleading it with
adequate specificity when they answered the complaint Pls.’ Mem. 43. Federal Rule of
Civil Procedure 9(a)(2) provides that a capacity defense must be raised by a “specific
denial” which states “any supporting facts that are peculiarly within the party’s
knowledge.” This requirement, however, “is not especially onerous.” 5A Charles Allen
Wright & Arthur R. Miller, Federal Practice and Procedure § 1294 (3d ed. 2004). “A
direct statement that the pleader denies the . . . capacity to sue or be sued . . . has been held
sufficient to raise the issue.” Id. ln their answer, defendants stated that they “lack the
capacity to be sued in this Court with respect to the” plaintiffs’ tort law claims Answer 2
[Dkts. ##77-10, 128]. l find this statement sufficiently direct to raise the issue of capacity.

lt undoubtedly put plaintiffs on notice as to the defense And, despite plaintiffs’

26

protestations that defendants failed to adequately plead supporting facts both defendants’
answer and plaintiffs’ own complaint pled descriptions of the PA and PLO. Compl. 11 25-
26; Answer 11 25-26. There was no need for more, because the status of the PA and PLO
as unincorporated associations is not a fact “peculiarly within [defendants’] knowledge.”
Fed. R. Civ. P. 9(a)(2). lndeed, numerous courts have described them as such, see, e.g.,
Waldman, 835 F.3d at 323, 332; Safra, 82 F. Supp. 3d at 48; Estates of Ungar ex rel.
Strachman v. Palestinian Auth., 153 F. Supp. 2d 76, 89 (D.R.l. 2001), and neither
plaintiffs’ briefs nor the Court’s own research, has identified any authority to the contrary.

To be sure, defendants did not reassert their lack of capacity defense at the motion
to dismiss stage. See Defs.’ Rev’d Mem. of P. & A. in Supp. of Mot. to Dismiss [Dkt.
#28]. But that is not, as plaintiffs contend, an obstacle to their asserting it now. A capacity
defense is “usually considered timely if raised . . . by motion for summary judgment.” 2
J ames Wm. Moore et al., Moore ’s F ederal Practice § 9.02 (Matthew Bender 3d ed. 2016);
see also St. Francis Xavier Parochial Sch., 77 F. Supp. 2d at 79 (holding at summary
judgment that defendant lacked capacity for suit). As plaintiffs do not put forward any
reasoning that would justify departing from the general rule in this case, l conclude that
defendants’ capacity defense is indeed timely.

Plaintiffs’ argument on the merits fares no better. According to plaintiffs the PLO
and PA can be sued in their own name because, in plaintiffs’ view, they are not merely
unincorporated associations but unincorporated nonprofit associations rendered capable of
suit by the District of Columbia Uniforrn Nonprofit Association Act. Pls.’ Mem. 44-45

(citing D.C. Code §§ 29-1109(a), 29-1105(a)). That statute, however, expressly provides
27

that its definition of unincorporated nonprofit associations “shall not include” any
“organization formed under any other statute.” D.C. Code § 29-1102(5). Obviously,
neither the PA nor the PLO was formed under D.C. statute. The PA was established by the
Oslo Accords, and the PLO was founded by Egypt and the Arab League. District courts
have consistently found that the PA and PLO lack capacity for suit on nonfederal claims
see, e.g., Estate of Parsons v. Palestinian Auth., Civ. Action No. 07-1847, 2008 U.S. Dist.
LEXIS 124833, at *14 (D.D.C. Sept. 30, 2008) (dismissing D.C. tort law claims against
the PA and the PLO for lack of capacity); Sokolow, 60 F. Supp. 3d at 523 (similar), and
plaintiffs’ novel argument in this case does not alter my conclusion that defendants are
entitled to summary judgment
CONCLUSION

The events of February 16, 2002 are indeed heartbreaking. The lives of Rachel
Thaler and Keren Shatsky were cut tragically short The lives of Leor Thaler, Hillel
Trattner, Steven Braun, Chana Friadman, and Ronit Trattner, and of all victims’ families
and friends were undoubtedly changed forever. Sadly, as plaintiffs point out, even all
these years later the “victims of the Karnei Shomron bombing [have] received nothing” in
compensation for their losses Pls.’ Mem. 6.

lt is not my role, however, to weigh these equities “By the time a party files a
summary judgment motion, all parties should have had the opportunity to investigate the
' case thoroughly and should have done so.” Johnson, 823 F.3d at 705. There is at the
summary judgment stage, no longer the hope of any new evidence_-“[e]ach party’s hand

is dealt.” Id. “The task of the court is to review the factual material the parties present in

28

support of and opposition to the motion, in light of the parties’ legal claims and defenses
and assess whether the record contains disputes calling for resolution by a factfinder.” Ia’.
Unfortunately for plaintiffs there are no such disputes presented here. Accordingly, the
Court will GRANT defendants’ motion for summary judgment

An Order consistent with this decision accompanies this Memorandum Opinion.

.-- t 4
< W
RICHARD J.§LBoN
United States District Judge

29