Academic journal article Harvard Law Review

Civil Procedure - Personal Jurisdiction - Second Circuit Reverses Anti-Terrorism Act Judgment for Foreign Terror Attack - Waldman V. Palestine Liberation Organization

Academic journal article Harvard Law Review

Civil Procedure - Personal Jurisdiction - Second Circuit Reverses Anti-Terrorism Act Judgment for Foreign Terror Attack - Waldman V. Palestine Liberation Organization

Article excerpt


Since 2011, the Supreme Court has been steadily limiting the breadth of general and specific personal jurisdiction. (1) One effect of this trend is to make it more difficult to sue foreign defendants for acts occurring outside the United States. (2) Recently, in Waldman v. Palestine Liberation Organization, (3) the Second Circuit overturned a $655.5 million judgment against the Palestinian government. (4) It concluded that the U.S. District Court for the Southern District of New York could not exercise general or specific jurisdiction over the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA), in a case involving overseas terrorist attacks that injured U.S. citizens. (5) It also rejected an argument that, for personal jurisdiction purposes, the Due Process Clause of the Fifth Amendment should be construed more broadly than the similar clause in the Fourteenth Amendment. (6) In the process, the Waldman court may have elided an important distinction relating to federal service-of-process provisions that could have altered its analysis and conclusion.

In 2004, the plaintiffs--eleven American families--filed suit in the Southern District of New York against the PLO and the PA. (7) Bringing their suit under the Anti-Terrorism Act (8) (ATA), which allows civil actions for injuries resulting from "act[s] of international terrorism," (9) the families alleged that the defendants were responsible for injuries and deaths resulting from several terror attacks in Jerusalem between 2002 and 2004. (10) The defendants comprise separate arms of the Palestinian government: the PA is the "non-sovereign government of [the] parts of the West Bank and the Gaza Strip" (11) known by some as Palestine, while "the PLO conducts Palestine's foreign affairs." (12) In order to carry out its diplomatic responsibilities, the PLO operates "embassies, missions, and delegations all over the world." (13) During the relevant period, two of those outposts were located in the United States--one in New York City and the other in Washington, D.C.14

Although the New York office engaged in United Nations activity--and thus was exempt from jurisdictional analysis (15)--the D.C. mission constituted a "substantial commercial presence," because it maintained phone lines and bank accounts in the United States and did business with U.S. companies. (16) Moreover, the defendants spent millions of dollars in a public relations campaign intended to influence U.S. policy toward Palestine. (17)

In 2007, the PLO and PA moved to dismiss the ATA claims for lack of personal jurisdiction. (18) The district court denied the motion, engaging in a traditional two-part personal jurisdiction analysis--which evaluates a defendant's "minimum contacts" with the forum and looks to "traditional notions of fair play and substantial justice"--to confirm that exercising jurisdiction over the defendants comported with due process. (19) Judge Daniels began by distinguishing between general jurisdiction, which allows a defendant to be sued for matters unrelated to their contacts with the forum, and specific jurisdiction, which requires any suit to be related to a defendant's forum contacts. (20) Without analyzing specific jurisdiction, he concluded (based largely on the activities of the D.C. mission) that the defendants had such "continuous and systematic" contacts with the United States as to satisfy minimum contacts--rendering the defendants subject to general jurisdiction. (21) He further decided that exercising general jurisdiction would not offend traditional notions of fair play or substantial justice, especially given the United States's "strong inherent interest" in litigating ATA cases. (22)

Several years later, while Waldman was still winding toward trial, the Supreme Court decided Daimler AG v. …

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