2004 | Cited 0 times | D. Rhode Island | July 12, 2004

1 On July 24, 2001, this Court dismissed all claims arisingout of Efrat Ungar's death because they were brought under18 U.S.C. § 2333, and the Complaint did not allege that Efrat Ungarwas an American national. Estates of Ungar ex rel. Strachman v.Palestinian Auth., 153 F. Supp.2d 76, 97 (D.R.I. 2001)(hereinafter, Ungar I). This included the claims of Efrat Ungar'sEstate, those filed by Rabbi Uri Dasberg and Judith Dasberg intheir individual capacities, and claims on behalf of Davir andYishai Ungar. Id.


There are three matters before this Court: 1)the objectionsfiled by Defendants, the Palestinian Authority ("PA"), and thePalestine Liberation Organization ("PLO"), to a Report andRecommendation issued by Magistrate Judge David L. Martin onMarch 31, 2004 ("Report and Recommendation"); 2)the PA's appealof a separate Order issued by Judge Martin granting Plaintiffs'request for attorneys' fees as a sanction for the PA's failure toprovide any discovery in the instant case; and 3)Plaintiffs'motion, pursuant to Rule 59(e) of the Federal Rules of CivilProcedure, to alter and amend this Court's April 23, 2004Decision and Order relating to sovereign immunity. The Estatesof Yaron Ungar ex rel Strachman v. The Palestinian Authority,315 F. Supp.2d 164 (D.R.I. 2004) (hereinafter, Ungar IV).

The facts of this case are described at length in this writer'sprevious opinions. See Ungar IV, 315 F. Supp.2d at 168-171;Ungar III, 304 F. Supp.2d at 244-47; The Estates of Ungar exrel. Strachman v. The Palestinian Auth., 228 F. Supp.2d 40,41-43 (D.R.I. 2002) (hereinafter, Ungar II); Ungar I,153 F. Supp.2d at 82-85; and the attached Report and Recommendation.Therefore, there is no need to repeat the tragic events andextensive procedural history underlying this litigation. Itsuffices to say here that on April 29, 2003, this writer referredPlaintiffs' three motions for default judgment against the PA andPLO to Magistrate Judge David L. Martin for preliminary review,findings, and recommended disposition pursuant to28 U.S.C. § 636(b)(1)(B) and Local Rule 32(a). Judge Martin held hearings onthe motions last summer and took the matters under advisement.

Judge Martin reviewed the submitted memoranda and exhibits,performed independent research, and then issued an extensiveReport and Recommendation on March 31, 2004, which is attachedhereto. Judge Martin recommended that this Court enter defaultjudgment against the PA in the amount of $116,421,048.00 andagainst the PLO in the amount of $116,415,468.00. Bothrecommended amounts include attorneys' fees.

The PA and PLO filed objections to Judge Martin's Report andRecommendation on April 19, 2004, before the time period forfiling objections set forth in Rule 72(b) of the Federal Rules ofCivil Procedure and Local Rule 32 elapsed later that day. The PAand PLO assert the following six grounds for their objections:1)this Court lacks subject matter jurisdiction because the PA andPLO are entitled to sovereign and governmental immunity under theForeign Sovereign Immunities Act, 28 U.S.C. § 1604 (1976)("FSIA"), and the Anti-Terrorism Act of 1991,18 U.S.C. § 2337(2)(1992) ("ATA"),2 and because the claims assertedagainst them present non-justiciable political questions;2)Plaintiffs' claims are legally insufficient and do not supportan entry of default judgment; 3)the Report and Recommendationfails to give effect to the PA's and PLO's position that they areentitled to a final determination of their claims to sovereign immunity, including appellate review, before being required toanswer the Amended Complaint or participate in discovery; 4)theReport and Recommendation fails to recognize and give effect tothe adverse conditions facing the Palestinian government and thePA and PLO, which have made discovery difficult and contrary toPalestinian national interests; 5)this Court lacks personaljurisdiction over the PA and PLO; and 6)the law should notrequire the "disproportionate compensation" recommended by JudgeMartin. Objections of Defs. Palestinian Auth. & PalestineLiberation Organization to the Mag. Judge's Report &Recommendation, (hereinafter, Objections), at 1-3. That sameday, the PA appealed Judge Martin's March 31, 2004 Order thatgranted Plaintiffs' request for attorneys' fees pursuant toRule 37(b)(2) of the Federal Rules of Civil Procedure as a sanctionfor the PA's failure to provide any discovery in the instantcase. The PA's arguments with respect to this appeal areidentical to its objections to the Report and Recommendation.See Notice of Appeal, at 2.

Also on April 19, 2004, Plaintiffs filed their own objectionsto the Report and Recommendation. Plaintiffs later withdrew theseobjections so as not to impede this Court from entering a finaljudgment. Notice of Withdrawal of Pls.' Objections to Portionsof the Report & Recommendation Issued on Mar. 31, 2004, at 2.Thereafter, Plaintiffs responded to the PA's and PLO's objectionsand argued that the objections did not present anything new andwere "hopelessly vague, frivolous, or irrelevant." Pls.' Objections of the Palestinian Auth. & Palestine LiberationOrganization to the Mag. Judge's Report & Recommendation, at 1.Plaintiffs requested that this Court make a de novo determinationthat rejects each of the objections, adopts the Report and Recommendation, and enters a final judgment against the PAand PLO. Id. at 2.

On April 27, 2004, Plaintiffs filed a motion, pursuant toRule 59(e) of the Federal Rules of Civil Procedure, to alter and amendthis Court's Decision and Order in Ungar IV regardingsovereign immunity. 315 F. Supp.2d at 164. Plaintiffs requestthat this Court reconsider and reverse its holding that the PAand PLO did not waive claims to sovereign immunity, and holdinstead that "even assuming arguendo that Defendants were`foreign States,' they have waived any claims to sovereignimmunity." Mem. in Supp. of Pls.' Mot. Pursuant to Fed.R. Civ.P. 59(e), at 4. The PA and PLO did not file any objections toPlaintiffs' motion.

The parties briefed and later argued these three matters onJune 23, 2004, and they are now in order for decision. For thereasons that follow, this Court overrules each of the PA's andPLO's objections to Judge Martin's Report and Recommendation,adopts that Report and Recommendation in toto and attaches ithereto. The PA's appeal of Judge Martin's separate Order withrespect to Plaintiffs' request for attorneys' fees andPlaintiffs' motion to amend this Court's decision in Ungar IVare denied. Furthermore, this Court directs the Clerk to enterdefault judgment against the PA and PLO as indicated below.

The Objections to the Report and Recommendation

The PA and PLO raise six objections to Judge Martin'srecommendation that this Court grant Plaintiffs' motions to enterdefault judgment. Since these motions are dispositive of theclaims presented in the Amended Complaint, this Court mustconduct a de novo review of Judge Martin's Report andRecommendation. See Harvard Pilgrim Health Care of New England v. Thompson, No. 02-354L, 2004 WL1166500 at *4 (D.R.I. May 26, 2004) (noting that a dispositivemotion is one that extinguishes a party's claim or defense and isreviewed by a district court de novo where that court may accept,reject, or modify the recommended decision, receive furtherevidence, or recommit the matter to the magistrate judge withinstructions). Therefore, although the PA and PLO do not presentthis Court with any new arguments, this writer will consider eachobjection in turn.

The PA's and PLO's first objection is that this Court lackssubject matter jurisdiction over the Amended Complaint due to theexistence of non-justiciable political questions and thesovereign immunity provided in Section 2604 of the FSIA3and Section 2337(2) of the ATA.4 Objections, at para.1. The PA and PLO raised and this Court rejected the samearguments in Ungar II and Ungar IV and does so again now. Forthe reasons set forth in those opinions, this writer reiteratesthat the Amended Complaint does not present any non-justiciablepolitical questions and neither the PA, the PLO, nor the entitycalled Palestine is or represents a foreign State and therefore,is not entitled to sovereign immunity. See Ungar IV,315 F. Supp.2d at 174-187; Ungar II, 228 F. Supp.2d at 44-49.Therefore, the PA's and PLO's first objection to the Report and Recommendation is overruled. The second objection raised by the PA and PLO is that thisCourt should not enter a default judgement because Plaintiffs'claims are legally insufficient. Objections, at para. 2. The PAand PLO argue that they "legitimately sought to protect andpromote Palestinian interests" and lacked the intent required toengage in acts of international terrorism as defined by theATA.5 Id. Furthermore, these Defendants argue thattheir conduct was not proximately related to Yaron Ungar'smurder. Id.

Similar to their claims to sovereign immunity, the above arearguments that should have been raised in an answer to theAmended Complaint or through Defendants' participation in thepresent litigation. However, these Defendants decided andinstructed their counsel not to answer the Amended Complaint orparticipate in discovery and therefore, were defaulted. SeeReport & Recommendation, at 69, n. 46 & at 70. The First Circuit has repeatedly held that when a defaultis entered, a court must consider that all of the plaintiff'sallegations of fact are true and that his or her claims areestablished as a matter of law. Brockton Sav. Bank v. Peat,Marwick, Mitchell & Co., 771 F.2d 5, 13 (1st Cir. 1985);accord Ramos-Falcon v. Autoridad de Energia Electrica,301 F.3d 1, 2 (1st Cir. 2002) (per curiam) (quoting QuirindongoPacheco v. Rolon Morales, 953 F.2d 15, 16 (1st Cir. 1992) andBrockton, 771 F.2d at 13); In Re The Home Restaurants Inc.,285 F.3d 111, 114 (1st Cir. 2002) (citing Franco v. SelectiveIns. Co., 184 F.3d 4, 9 at n. 3 (1st Cir. 1999)); Libertad v.Sanchez, 215 F.3d 206, 208 (1st Cir. 2000).

This Court previously concluded that Plaintiffs would beentitled to relief if the allegations in the Amended Complaintwere true when it denied the Defendants' motion to dismisspursuant to Rule 12(b)(6) of the Federal Rules of CivilProcedure. Ungar II, 228 F. Supp.2d at 47. Given the PA's andPLO's default and fact that the allegations in the AmendedComplaint must now be deemed true, there is no merit in thesecond objection, which essentially challenges the ATA claimsasserted in the Amended Complaint. Therefore, for these and thereasons set forth in Ungar II, the second objection is alsooverruled. See 228 F. Supp.2d at 47.

The PA's and PLO's third objection is that the Report andRecommendation fails to give effect to their argument that theyare entitled to a final determination of their claim to sovereignimmunity before the burdens of litigation are imposed on them.Objections, at para. 3. To support this argument, theDefendants cite In re Papandreou, which dealt with adefendant's petition for a writ of mandamus to vacate an Order compelling discovery related to a sovereign immunitydefense. 139 F.3d 247, 249-50 (D.C. Cir. 1998). The Circuit Courtfound that this discovery should not have been authorized withouta showing of need and before the district court considered thealternate, non-merits routes to dismissal of standing, forum nonconveniens, personal jurisdiction, and the act of state doctrinethat were asserted by the defendants. Id. at 254-56. The Courtnoted that an assertion of immunity should not increaselitigation costs at the expense and neglect of swifter routes todismissal. See id. at 254.

Aside from the fact that Papandreou does not directly supportthe Defendants' argument, their continued flawed assertions ofsovereign immunity, despite their own admissions that they arenot a foreign State as defined by the FSIA, have increased thecosts borne by Plaintiffs and prolonged this litigationunnecessarily. Unlike the situation presented in Papandreou,the PA and PLO refused to participate in discovery even afterthis Court heard and rejected the alternate, non-merits routes todismissal of personal jurisdiction, insufficient service ofprocess, improper venue, and forum non conveniens. Ungar I,153 F. Supp.2d at 87-100. Moreover, when Judge Martin heard,considered, and ultimately rejected the Defendants' objectionduring hearings in July of 2003, this writer had alreadydetermined that the PA was not a foreign State or arepresentative thereof as defined by the FSIA and consequently,was not immune from suit under the ATA. See Report &Recommendation, at 28-29; Ungar II, 228 F. Supp.2d at 49.This Court has since determined that there is no basis whatsoeverfor the PA or PLO to claim sovereign immunity. Ungar IV,315 F. Supp.2d at 179, n. 7. Therefore, for all of these reasons andthose set forth in the portions of Ungar II and Ungar IV referred to above, the Defendants' third objection is alsooverruled.

The fourth objection asserts that the Report and Recommendationfails to recognize and give effect to the adverse conditionsfacing the Palestinian government and the PA and PLO, which madediscovery difficult and contrary to Palestinian nationalinterests. Objections, at para. 4. This assertion isdisingenuous, especially in light of the fact that suchconditions have not prevented the PA and PLO from making theextensive filings reflected throughout the procedural history ofthis case. See Ungar IV, 315 F. Supp.2d at 169-171. As JudgeMartin points out, this objection, although repeatedly raised bythe PA and PLO, remains unsupported by affidavit or otheradmissible evidence. See Report & Recommendation, at 21-22.Furthermore, this Court has granted the PA and PLO numerousindulgences in the form of extensions of time for filing papersand continuances of scheduled hearings. See id. at 25 & 64.Yet, these Defendants made the deliberate choice not participatein this litigation and have not answered a single interrogatoryor request for admission or produced a single document sought byPlaintiffs. Therefore, the Defendants' fourth objection to theReport and Recommendation has no merit and is also overruled.

Next, the PA and PLO object to Judge Martin's conclusion thatthis Court has personal jurisdiction in the instant case.Objections, at para. 5. This Court dealt with the issue ofpersonal jurisdiction at length and rejected this same argumentin Ungar I. 153 F. Supp.2d at 86. This writer sees no need torevisit that decision and overrules the Defendants' fifthobjection based on the authorities and reasoning set forth inthat opinion. See Ungar I, 153 F. Supp.2d at 86-91. The final objection raised by the PA and PLO is that the lawshould not require the "disproportionate compensation"recommended by the Magistrate Judge "for the death of one personin the context of an ongoing conflict in which thousands ofinnocent civilians on both sides have been killed without anyhope of compensation." Objections, at para. 6. These Defendantsargue that the ultimate burden of this compensation will be borneby an impoverished and oppressed Palestinian people who currentlysuffer from a continuing humanitarian crisis. Id. Defendantsare hard pressed to succeed with this argument given the factthat they deliberately stated their intentions not to participatein and thus, waived a hearing on damages. See Report andRecommendation, at 72 (internal citations omitted).

Defendants' arguments are offensive at best, especially giventhis Court's adoption of Judge Martin's extensive recommendationsrelating to the damages owed by Defendant Hamas for the brutalmurders that are the subject of this litigation. See UngarIII, 304 F. Supp.2d at 267-277. Judge Martin applied those samefindings in making his recommendations as to the damages to beassessed against the PA and PLO and this writer finds no error inthose conclusions. See Report & Recommendation, at 72-73. ThePA and PLO, and not an impoverished and oppressed Palestinianpeople, are responsible for and must bear the ultimate burden ofproviding compensation, which this Court fully acknowledges willnever return to Plaintiffs the relationships and lives thatexisted prior to June 9, 1996. This Court hopes that in keepingwith the ATA's purpose to deter acts of international terrorism,its judgment will "interrupt or at least imperil the flow ofterrorism's lifeblood, money," and thus, prevent the PA and PLO from funding future terrorist actssuch as the one that resulted in the Ungars' horrific deaths.Ungar III, 304 F. Supp.2d at 239(citing Antiterrorism Act of1990: Hearing on S2465 Before the Subcomm. on Cts. and Admin.Practice of the Comm. on the Judiciary U.S.S., 101st Cong., at85 (1990) (statement of Joseph Morris)). For all of thesereasons, the Defendants' final objection to the Report andRecommendation is also hereby, overruled.

In sum, this Court overrules each of the PA's and PLO'sobjections for the reasons stated above. This Court adopts intoto Judge Martin's March 31, 2004 Report and Recommendation andpublishes it with this Memorandum and Order. Judgment shall beentered against the PA and PLO as directed below.

The PA's Appeal of Judge Martin's Order Imposing Sanctions fortheir Delays and Refusal to Participate in Discovery

The PA appeals a separate Order issued by Judge Martin on March31, 2004, which granted Plaintiffs' request for attorneys' feespursuant to Rule 37(b)(2) of the Federal Rules of CivilProcedure. Judge Martin ordered the PA to pay attorneys' fees asa sanction for its delays and ultimate refusal to comply withPlaintiffs' discovery requests and this Court's discovery orders.Report & Recommendation, at 75. Judge Martin imposed thissanction separately and independently from his recommendationthat this Court award attorneys' fees pursuant to the ATA and inthe event that this writer declined to enter a default judgmentin this case. Id. The PA argues that: 1)the grant of attorneys'fees is unauthorized and excessive in amount; 2)their positionwith respect to discovery was taken in good faith; and 3)thediscovery demanded was unreasonable for essentially the samereasons as those offered in its objections to the Report and Recommendation. Notice of Appeal, at 1-2. Onceagain, this Court does not find any of those argumentspersuasive.

Rule 37(b) of the Federal Rules of Civil Procedure allows acourt to order the payment of attorneys' fees as a sanction forfailing to obey an order to provide or permit discovery.Fed.R.Civ.P. 37(b) (West 2004). A magistrate judge's determination toaward attorneys' fees as a discovery sanction pursuant to thisRule is a non-dispositive matter, which the district courtreviews under the clearly erroneous standard. Thomas E. HoarInc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)(citations omitted). See also, Hutchinson v. Pfeil,105 F.3d 562, 566 (10th Cir. 1997) (noting that discovery orders arenon-dispositive and magistrate judges have the authority to orderdiscovery sanctions). A determination is "clearly erroneous"when, although there is evidence to support it, the court, afterreviewing all the evidence, is left with the definite and firmconviction that the magistrate judge made a mistake. HarvardPilgrim, 2004 WL at *4 (citing United States v. U.S. GypsumCo., 333 U.S. 364, 395 (1948)). In conducting this review, thedistrict court must refrain from second guessing the magistratejudge's pre-trial discovery rulings. Id. (citing Mutual Fire,Marine & Inland Ins. Co. v. Jenckes Mach. Co., No. 85-0586, 1986WL 9717, at *1 (D.R.I. Feb. 19, 1986)).

As defense counsel conceded during oral arguments, this Court'sadoption of Judge Martin's Report and Recommendation disposes ofthe present appeal. Given the PA's history of refusing to complywith this Court's orders and the rules of procedure governing depositions, interrogatories, and requestsfor the production of documents and for admissions, this Courtfinds Judge Martin's conclusion to sanction the PA for itsdeliberate actions to delay the completion of this litigation tobe clearly correct. Therefore, for these and the reasonspreviously mentioned with regard to the other objections to theReport and Recommendation, the PA's appeal of Judge Martin'sOrder hereby, is denied.

Plaintiffs' Motion to Amend this Court's Decision and OrderRegarding Sovereign Immunity

The final matter before this Court is Plaintiffs' Motion,pursuant to Rule 59(e) of the Federal Rules of Civil Procedure,to amend this Court's Decision and Order regarding sovereignimmunity. Ungar IV, 315 F. Supp.2d 164. In that decision, thisCourt noted that the PA and PLO had not waived sovereignimmunity, even though it ultimately held that those Defendantswere not entitled to such immunity. Id. at 173. Plaintiffsrequest that this Court amend its judgment to hold instead thateven assuming that the defendants were "foreign States," theyhave waived any claims to sovereign immunity. Mem. in Supp. ofPls.' Mot. Pursuant to Fed.R.Civ.P. 59(e), at 4. Neither thePA nor the PLO have filed any objections to this motion.

Rule 59(e) allows a court to alter or amend its judgment if amotion to do so is filed no later than ten days after theoriginal judgment is entered. See Commercial Assocs. v. TilconGammino Inc., 801 F. Supp. 939, 942 (D.R.I. 1992); Fed.R. Civ.P. 59(e) (West 2004). A court has broad discretion in deciding amotion brought pursuant to this Rule. DeSenne v. Jamestown BoatYard Inc., 781 F. Supp. 866, 869 (D.R.I. 1991) (citing UnitedStates v. Land at 5 Bell Rock Rd., 896 F.2d 605, 611 (1st Cir. 1990)). See also Commercial Assocs., 801 F. Supp. at 942(citing White v. N.H. Dep't. of Employment. Sec., 455 U.S. 445,450-51 (1982) (quoting the Advisory Committee's notes on the 1946Amendments to the Federal Rules)). The most common grounds forgranting a Rule 59(e) motion are a manifest error of law or factor newly discovered evidence. DeSenne, 781 F. Supp. at 869(citing Kalman v. Berlyn Corp., 706 F. Supp. 970, 974 (D.Mass.1989)). In order to show a manifest error of law or fact, themoving party must present a substantial reason that the court isin error. Id. Since Plaintiffs have not presented any newlydiscovered evidence, this Court will confine its discussion towhether or not its conclusion that the PA and PLO did not waivesovereign immunity was a manifest error of law or fact.

This writer made no such error for two reasons. First, thestatements of the PA and PLO cited by Plaintiffs are admissionsthat they do not satisfy the criteria for statehood required byUnited States' and international law rather than the explicitwaiver of sovereign immunity contemplated by the FSIA exception.Second, this Court's discussion in Ungar IV regarding the issueof waiver is dictum and ancillary to its holding that the PA andPLO were not and did not represent a foreign State that isentitled to sovereign immunity.

As this Court noted in Ungar IV, the FSIA provides anexception to sovereign immunity when a foreign State waives itsimmunity either explicitly or by implication. 315 F. Supp.2d at173(citing 28 U.S.C.A. § 1605(a)(1)). The Supreme Court hasdirected that explicit waivers of sovereign immunity are narrowlyconstrued in favor of the sovereign. Library of Cong. v. Shaw, 478 U.S. 310, 318(1986). An express waiver under the FSIA must give a clear,complete, unambiguous, and unmistakable manifestation of thesovereign's intent to waive its immunity. World Wide Minerals,Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1162 (D.C. Cir.2002) (citing Aquamar S.A. Del Monte Fresh Produce N.A. Inc.,179 F.3d 1279, 1292 (11th Cir. 1999)). In creating the waiverexception to sovereign immunity, Congress anticipated that at aminimum, a waiver would not be found absent a State's consciousdecision to take part in the litigation and failure to raise thesovereign immunity defense despite an opportunity to do so.Haven v. Rzeczpospolita Polska, 215 F.3d 727, 733 (7th Cir.2000) (citing Frolova v. Union of Soviat Socialist Republics,761 F.2d 370, 378 (7th Cir. 1985) (per curiam)). A foreignState's indication that it does not intend to participate in thelitigation does not constitute the conscious decision required toexplicitly waive a sovereign immunity defense. Id. However,Federal Courts have found an explicit waiver of sovereignimmunity where a foreign State is a party to an agreement whoseterms include specific language that the parties waive any rightto sovereign immunity. See World Wide Minerals, 296 F.3d at1163; Libra Bank Ltd. v. Banco Nacional de Costa Rica,676 F.2d 47, 49 (2d Cir. 1982) (both noting the express provisions ofvarious agreements containing explicit waivers of sovereignimmunity). In contrast to an explicit waiver, an admission is anadversary's position which is contrary to and inconsistent with acontention made later in the litigation. Cox v. Esso ShippingCo., 247 F.2d 629, 632 (5th Cir. 1957); Vockie v. Gen. MotorsCorp., 66 F.R.D. 57, 60 (E.D. Pa. 1975). See also, Black'sLaw Dictionary, 48 (7th ed. 1999) (admission is a voluntary acknowledgment of the existence of facts relevant to anadversary's case).

Plaintiffs point to the PA's and PLO's statements that theirstatus is "unusual," "particular," and "undefined," as indicatingthat those Defendants have waived any defense of sovereignimmunity. Mem. in Support of Pls.' Mtn. Pursuant to Fed.R. Civ.P. 59(e), at 2. These statements are contrary to andinconsistent with the PA's and PLO's position that they satisfythe criteria for statehood discussed in Ungar IV. See315 F. Supp.2d at 177(noting that an entity is a State when itpossesses a permanent population, defined territory, agovernment, and the capacity to enter into relations with otherStates). Therefore, the statements are, as Plaintiffs point out,express admissions that neither Defendant satisfies thecriteria for statehood and thus, each Defendant is not a foreignState that is entitled to immunity under the FSIA. See Mem. inSupport of Pls.' Mtn. Pursuant to Fed.R.Civ.P. 59(e), at 1(emphasis added). Furthermore, the PA's and PLO's decision andinstructions to counsel not to participate in the instantlitigation until this Court ruled on their sovereign immunitydefense did not constitute a complete, unambiguous, andunmistakable manifestation of an intent to waive any purportedsovereign immunity defense. See Haven, 215 F.3d at 733.Therefore, this Court sees no manifest error in its conclusionthat the PA and PLO did not waive the sovereign immunity defense.

Alternatively, this Court's conclusion that neither the PA, thePLO, nor the entity called Palestine was a foreign State entitledto sovereign immunity disposed of Plaintiffs' waiver argument andrendered this Court's discussion of that issue dictum. SeeMcConaghy v. Sequa Corp., 294 F. Supp.2d 151, 160 (D.R.I.2003) (citing Black's Law Dictionary, 454 (6th ed. 1990)) (dicta constitutes"[o]pinions of a judge which do not embody the resolution ordetermination of the specific case before the court"). As thisCourt noted in Ungar IV, the waiver issue only arises if andwhen a court is satisfied that the party claiming sovereignimmunity is a foreign State or an agent or instrumentality of aforeign State. 315 F. Supp.2d at 176. See also, Southeby'sInc. v. Garcia, 802 F. Supp. 1058, 1062-63 (S.D.N.Y. 1992)(noting that it was undisputed that the Phillippines was aforeign State as defined in the FSIA and then proceeding toassess whether or not the waiver exception applied). The specificissue before this Court in Ungar IV was whether or not the PA,PLO, or the entity called Palestine were or represented a foreignState that was protected by sovereign immunity. See315 F. Supp.2d at 173, 175 & 178. This writer answered that question inthe negative and any observations regarding waiver were not partof the determination of the specific issue of sovereign immunity.See id. at 187. Simply put, the PA and PLO never had a validdefense of sovereign immunity to waive. For all of these reasons,Plaintiffs' motion to amend this Court's decision in Ungar IV,hereby, is denied.

As stated above, the Defendants' objections to Judge Martin'sMarch 31, 2004 Report and Recommendation are overruled and thePA's appeal of Judge Martin's Order with respect to attorneys'fees is denied. Plaintiffs' motion to amend this Court's Decisionand Order regarding sovereign immunity is also denied. For theaforementioned reasons, and those set forth in the Report andRecommendation attached hereto, this Court adopts said Report andRecommendation and orders the Clerk to enter final judgment forthe specific Plaintiffs listed below against Defendants, the Palestinian Authority and the Palestine LiberationOrganization, who are jointly and severally liable for thefollowing amounts with respect to each Plaintiff: The Estate of Yaron Ungar $2,932,158.00 Dvir Ungar $30,488,482.50 Yishai Ungar $30,488,482.50 Judith Ungar $15,000,000.00 Meir Ungar $15,000,000.00 Michal Cohen $7,500,000.00 Amichai Ungar $7,500,000.00 Dafna Ungar $7,500,000.00

The Clerk shall also enter judgment for Plaintiffs as a groupawarding them attorneys' fees against the Palestinian Authorityin the amount of $11,925.00 and against the Palestine LiberationOrganization in the amount of $6,345.00. The total amount ofjudgment, including attorneys' fees, shall be $116,421,048.00against the Palestinian Authority and $116,415,468.00 against thePalestine Liberation Organization.

The Clerk shall enter judgment as indicated forthwith.

It is so ordered.

1. On July 24, 2001, this Court dismissed Defendants YasserArafat, Jibril Rajoub, Muhammed Dahlan, Amin Al-Hindi, TwfikTirawi, and Razi Jabali due to a lack of personal jurisdiction.Ungar I, 153 F. Supp.2d at 100. Similarly, on January 27, 2004,this Court dismissed Defendants Abdel Rahman Ismail Abdel RahmanGhanimat, Jamal Abdel Fatah Tzabich Al Hor, Raed Fakhri AbuHamdiya, Ibrahim Ghanimat, and Iman Mahmud Hassan Faud Kafishedue to a lack of personal jurisdiction. Estates of Ungar ex rel.Strachman v. Palestinian Authority, 304 F. Supp.2d 232, 241(D.R.I. 2004) (hereinafter, Ungar III). This Court also enteredfinal judgment against Defendant, Hamas — Islamic ResistenceMovement (A.K.A. "Harakat Al-Muqawama Al-Islamiyya") for a totalamount of $116,409,123.00 plus attorneys' fees and court costs.Id. at 242-43.

2. Congress originally enacted Sections 2331-2338 as part ofthe Antiterrorism Act of 1990. Pub.L. No. 101-519, § 132, 104Stat. 2250-2253 (1990). However, that Public Law has no currentlyeffective sections. Congress re-enacted these sections as part ofthe Federal Courts Administration Act of 1992. Pub.L. No.102-572, Title X, § 1003(a)(1)-(5), 106 Stat. 4521-4524 (1992),which was amended on October 31, 1994 to Pub.L. No. 103-429, §2(1), 108 Stat. 4377. Ungar II, 228 F. Supp.2d at 41 n. 1.

3. 28 U.S.C. § 2604 has been repealed. The defense ofsovereign immunity provided for in the FSIA is now codified at28 U.S.C. § 1604 (1976), which provides, in part, that "a foreignState shall be immune from the jurisdiction of the courts of theUnited States and of the States except as provided in sections1605 to 1607 of this chapter."

4. Section 2337(2) of the Anti Terrorism Act states that "noaction shall be maintained under Section 2333 against a foreignstate, an agency of a foreign state, an officer or employee of aforeign state or an agency thereof acting within his or herofficial capacity or under color of legal authority."18 U.S.C. § 2337(2).

5. Section 2331(1) of the ATA defines the term internationalterrorism to mean 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 assassination or kidnaping; 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).

Back to top