UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) BASSEM AL-TAMIMI, et al., ) ) Plaintiffs, ) ) v. ) Case No. 16-cv-445 (TSC) ) SHELDON ADELSON, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiffs claim Defendants committed war crimes, crimes against humanity, genocide,

conspiracy, and trespass by seeking to expel all non-Jewish people from East Jerusalem, the

West Bank, and the Gaza Strip. This case is on remand from the D.C. Circuit’s decision that the

court does not lack jurisdiction under the political question doctrine. Defendants have once

again moved to dismiss, citing lack of subject matter jurisdiction, failure to state a claim, lack of

personal jurisdiction, and improper service of process.

Having reviewed the record and the briefing, the court will GRANT Defendants’ motions

to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), ECF Nos. 162,

164, and will DENY Defendants’ Motion to Dismiss Pursuant to Federal Rules of Civil

Procedure 12(b)(2) and 12(b)(5), ECF No. 166, as moot.

I. BACKGROUND

Fifty-three individuals— Palestinian-Americans and Palestinian nationals from East

Jerusalem, the West Bank, and the Gaza Strip—and five Palestinian village councils initially

sued more than one hundred Defendants in March 2016. See Compl., ECF No. 1. Over the

years, most Defendants were dismissed. Plaintiffs categorize the remaining Defendants as seven

Page 1 of 14 “Donor Defendants” (Norman Braman, Lawrence Ellison, Daniel Gilbert, John Hagee, Lev

Leviev, Haim Saban, Irving Moskowitz Foundation), one “Settlement and Advocate/Promoter”

Defendant (Elliot Abrams), eleven “Pro-Settlement Tax-Exempt Entity Defendants,” 1 one “Bank

Defendant” (Valley National Bank, formerly Bank Leumi USA), and four “Construction/Support

Firm Defendants” (G4S North America, RE/MAX LLC, Hewlett Packard Enterprise Co., and

Motorola Solutions Inc.). See Am. Compl., ECF No. 77 at 47–77; Min. Order of Partial

Dismissal, June 8, 2020 (dismissing several additional Defendants).

Plaintiffs allege that Donor Defendants “funneled millions of dollars through” Pro-

Settlement Tax Exempt Entity Defendants and Bank Defendant to Israeli settlements. Al-Tamimi

v. Adelson,

(D.C. Cir. 2019). The settlement leaders then used the financial

assistance to hire staff to “train[] a militia of Israeli settlers to kill Palestinians and confiscate

their property.”

Plaintiffs also claim that Construction/Support Firm Defendants “destroyed

property belonging to the plaintiff Palestinians and built settlements in its place.”

“All

defendants knew their conduct would result in the mass killings of Palestinians residing in the

disputed territory.”

The Amended Complaint includes four claims that: (1) Defendants Abrams, Hagee,

Leviev, the Irving Moskowitz Foundation, and Pro-Settlement Tax-Exempt Entity Defendants

conspired to remove Palestinians from the disputed territory (Count I); (2) all Defendants

committed or sponsored genocide and other war crimes in violation of the law of nations (Count

II); (3) Donor Defendants, Defendant Abrams, Bank Defendant, G4S North America, RE/MAX,

1 American Friends of Ariel, American Friends of Bet El Yeshiva, American Friends of Har Homa, Christian Friends of Israeli Communities, Efrat Development Foundation, Falic Family Foundation, Friends of Israel Defense Forces, Gush Etzion Foundation, Honenu National Legal Defense Organization, the Hebron Fund, and Jewish National Fund. Am. Compl., ECF No. 77 at 54–63.

Page 2 of 14 LLC, and Jewish National Fund (“JNF”) aided and abetted genocide and other war crimes

(Count III); and (4) Bank Defendant and Construction/Support Firm Defendants trespassed on

private property (Count IV). Am. Compl. at 103, 145, 180, 184; Al-Tamimi, 916 F.3d at 4–5.

The court initially dismissed the case for lack of subject matter jurisdiction, concluding

that it raised nonjusticiable political questions. See Al-Tamimi v. Adelson,

(D.D.C. 2017); Order, ECF No. 121. The D.C. Circuit reversed, holding that the only

nonjusticiable question is “who has sovereignty over the disputed territory,” but because that

question is extricable from the rest of the suit, the political question doctrine does not bar any of

Plaintiffs’ claims. Al-Tamimi, 916 F.3d at 13–14 (emphasis omitted).

On remand, Defendants again moved to dismiss Plaintiffs’ claims for lack of subject

matter jurisdiction, failure to state a claim, lack of personal jurisdiction, and improper service of

process (ECF Nos. 162, 164, 166).

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), a defendant to move to dismiss any

claim for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Key aspects of subject

matter jurisdiction are Article III standing and federal question, diversity, or supplemental

jurisdiction. Lujan v. Defs. of Wildlife,

(1992);

;

§ 1332(a); id. § 1367(a). To survive a Rule 12(b)(1) motion, the plaintiff must establish that the

court has subject matter jurisdiction as to each claim, not just one. See Town of Chester v. Laroe

Ests., Inc.,

(2017).

In assessing a motion to dismiss, the court must “accept all of the factual allegations in

the complaint as true,” Jerome Stevens Pharms. Inc. v. FDA,

(D.C. Cir.

2005) (citation omitted), and construe the complaint “in the light most favorable to” the non- Page 3 of 14 moving party, Navab-Safavi v. Glassman,

(D.C. Cir. 2011). That said,

because the court has “an affirmative obligation to ensure that it is acting within the scope of its

jurisdictional authority,” the “factual allegations in the complaint . . . will bear closer scrutiny

[than those allegations would] in resolving a 12(b)(6) motion for failure to state a claim.” Grand

Lodge of Fraternal Ord. of Police v. Ashcroft,

, 13–14 (D.D.C. 2001)

(quotation marks and citation omitted).

B. Federal Rule of Civil Procedure 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). Statutory standing—the “inquiry into whether the statute at issue conferred a ‘cause of

action’ encompassing ‘a particular plaintiff’s claim’”—is fundamentally “a merits issue” to be

resolved under Rule 12(b)(6). See United States v. Emor,

(D.C. Cir. 2015).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (citation omitted). In other words, the plaintiff must plead “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

(citation omitted).

While the court presumes the truth of the complaint’s factual allegations under Rule

12(b)(6) as well, it does not “accept as true ‘a legal conclusion couched as a factual allegation,’

nor inferences that are unsupported by the facts set out in the complaint.” Laughlin v. Holder,

(D.D.C. 2013) (citation omitted).

Page 4 of 14 III. ANALYSIS

A. Article III Standing

i. Establishing Article III standing

To show standing, a plaintiff must have (i) an “injury in fact,” that is (ii) “fairly traceable

to the challenged action of the defendant, and not the result of the independent action of some

third party not before the court,” and that (iii) is “likely” to be “redressed by a favorable

decision.” Lujan, 504 U.S. at 560–61 (formatting modified). Each element “must be supported

in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with

the manner and degree of evidence required at the successive stages of the litigation.” Id. at 561

(citation omitted). At the motion to dismiss stage, that means “the complaint must contain

‘sufficient factual matter, accepted as true,’ to support an inference of standing ‘that is plausible

on its face.’” Air Excursions LLC v. Yellen,

(D.C. Cir. 2023) (quoting Iqbal,

; Bell Atl. Corp. v. Twombly,

(2007)). General factual

allegations “may suffice” because the court presumes “that general allegations embrace those

specific facts that are necessary to support the claim.” Lujan,

(citation omitted).

“Article III grants federal courts the power to redress harms that defendants cause

plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.”

TransUnion LLC v. Ramirez,

(2021) (citation omitted). Thus, the plaintiff

must have a “personal stake in the outcome of the controversy.” Susan B. Anthony List v.

Driehaus,

, 158 (2014) (citation omitted). The injury in fact element ensures the

plaintiff’s personal stake by requiring the plaintiff to identify “an invasion of a legally protected

interest” that is “concrete and particularized” and “actual or imminent.” Lujan,

.

The causation or traceability element requires that the plaintiff sues a party bearing some

responsibility for its injury. See

at 560–61. Even where third parties are directly responsible Page 5 of 14 for a plaintiff’s injuries, the plaintiff may have standing if their allegations allow a “reasonable

inference” that the defendant was “at least partially to blame” for the harm the third parties

caused them. See In re U.S. Off. of Pers. Mgmt. Data Sec. Breach Litig.,

(D.C.

Cir. 2019) (“Office of Personnel Management”). In Office of Personnel Management, for

example, the D.C. Circuit concluded that plaintiffs sufficiently pleaded that they were at an

increased risk of future identity theft traceable to a data breach caused by defendants.

at 60–

61. Plaintiffs alleged that defendants failed to properly secure their login credentials, which the

Court concluded was a substantial factor in allowing third-party hackers to access plaintiffs’

personal information and enable them to steal plaintiffs’ identities and misuse their personal

information.

By contrast, the D.C. Circuit found no plausible allegations of traceability in Kareem v.

Haspel,

(D.C. Cir. 2021), where plaintiff was attempting to link the United States

to specific airstrikes in Syria even though there were several actors involved in Syrian airstrikes

at the time. Plaintiff asserted that the United States “conducts lethal strikes,”

, and

noted that one strike was conducted with “what appeared to be a Hellfire missile”—a type of

missile that the United States and many of its allies use,

. The Court concluded that this

allegation was “plainly insufficient to establish plausibly that, in a war-torn area of Syria in the

summer of 2016, the United States was responsible for five airstrikes in Kareem’s vicinity and

that Kareem was the specific target of those airstrikes.”

. Unlike in Office of Personnel

Management, any number of other allies that use Hellfire missiles may have been responsible for

the airstrikes. See

And none of Kareem’s allegations indicated how or why Kareem may

have been the intended target.

Page 6 of 14 Finally, the redressability element ensures that it is “likely” the plaintiff will “obtain

relief that directly redresses the injury suffered” if the court rules in their favor. Reed v. Goertz,

, 960 (2023) (quoting Utah v. Evans,

(2002)). Causation and

redressability are “closely related” yet distinct: “causation focuses on the ‘connection between

the assertedly unlawful conduct and the alleged injury’ whereas redressability focuses on the

connection between the alleged injury and the judicial relief requested.’” West v. Lynch,

, 1235–36 (D.C. Cir. 2017) (citation omitted).

In a case with multiple plaintiffs, like this one, so long as “standing can be shown for at

least one plaintiff,” the court “need not consider the standing of the other plaintiffs to raise the

claim.” Del. Dep’t of Nat. Res. & Env’t Control v. EPA,

(D.C. Cir. 2015) (quoting

Mountain States Legal Found. v. Glickman,

(D.C. Cir. 1996)). But standing

“is not dispensed in gross.” Town of Chester,

(formatting modified; citations

omitted). Rather, “a plaintiff must demonstrate standing for each claim.”

(citation omitted).

Thus, Plaintiffs need to show that at least one of them has Article III standing for each of their

four claims.

ii. Plaintiffs have Article III standing

Taking Plaintiff Al-Tamimi as an example, the court finds that Plaintiffs have established

Article III standing. Injury and redress are straightforward. Al-Tamimi claims that he was

arrested and incarcerated “at least ten times,” “he was tortured on an almost daily basis;” and

suffered permanent bodily injury. Am Compl. Ex. C at 10–11; see Am. Compl. at 46, 60. And

Plaintiffs seek to redress these harms with damages that would compensate Al-Tamimi for “pain

and suffering” resulting from continuous arrests and incarceration and provide him with

Page 7 of 14 “psychological counseling services” which would assist him in recovering from those traumatic

experiences. Am. Compl. at 143–44.

Causation presents a closer question, but Plaintiffs prevail. Exhibit C to the Amended

Complaint details the causal chain and relevant actors involved in the harms Al-Tamimi

experienced. See Am. Compl. Ex. C at 10. Specifically, it claims that several Defendants

contributed funds to Friends of Israeli Defense Forces, Bank Defendant, Bank Hapoalim,

Honenu National Legal Defense Organization, One Israel Fund, and JNF.

Those funds were

then received by organizations including the Israeli Defense Forces (“IDF”).

IDF,

Construction/Support Firm Defendants, and armed settlers used those funds to arrest and

incarcerate Al-Tamimi.

In detailing the harm, Exhibit C further explains which non-

defendants were involved in which harms Al-Tamimi suffered, and states that the “activity was

financed by” Bank Defendant and JNF.

Indeed, Exhibit C totals 50 pages and details a

similar causal chain for each Plaintiff.

The allegations in the Amended Complaint are more plausible than the allegation in

Kareem. The Amended Complaint purports to draw connections between entities that outwardly

support Israeli forces and have donated money to them in the past; which entities receive that

money; and then the entities and individuals who receive those funds and use them to inflict

harm on Plaintiffs. At the pleading stage, these allegations are plausible, and Al-Tamimi’s

injuries are traceable to Defendants.

Defendants contend that, since the ultimate actors are third parties such as Israeli settlers,

“Plaintiffs must demonstrate that the Defendants’ financial or commercial support caused” the

third parties’ actions. Mot. to Dismiss, ECF No. 164 at 47–49 (emphasis in original); accord

Reply, ECF No. 181 at 16. That is not the appropriate legal standard. Plaintiffs need only

Page 8 of 14 plausibly plead that Defendants’ actions were a substantial factor in the harms they suffered.

Office of Personnel Management,

.

Defendants also repeatedly argue that some of the allegations regarding other Plaintiffs’

standing are insufficient. Mot. to Dismiss, ECF No. 164 at 44–46; Reply, ECF No. 181 at 15.

But, as noted above, supra at 7, Article III does not require each of the fifty-three Plaintiffs to

establish standing; only one Plaintiff need do so, Del. Dep’t of Nat. Res. & Env’t Control, 785

F.3d at 8 (citation omitted). Plaintiff Al-Tamimi has done just that.

B. Federal Question Jurisdiction

Plaintiffs rely primarily on federal questions to establish subject matter jurisdiction but

cite different statutes to create jurisdiction depending on the plaintiff’s country of citizenship.

See Am. Compl. at 32–34. Foreign Plaintiffs cite the Alien Torts Statute,

(“ATS”), and U.S. Plaintiffs cite the Torture Victim Protection Act of 1991 (“TVPA”),

Stat. 73 (1992), note following

.

All Plaintiffs cite

criminal and civil forfeiture statutes—18 U.S.C. §§ 371, 981—in support of jurisdiction. Id. at

36–37.

Naming a federal statute in a complaint cannot confer federal question jurisdiction if its

mention is “so insubstantial, implausible, foreclosed by prior decisions of this Court, or

otherwise completely devoid of merit as not to involve a federal controversy.” Steel Co. v.

Citizens for a Better Env’t,

(1998) (citation omitted). Applying that standard,

the court finds that neither the cited criminal and civil forfeiture statutes, nor the TVPA, create a

federal controversy.

Page 9 of 14 i. Criminal and civil forfeiture statutes

Plaintiffs claim federal question jurisdiction because Defendants allegedly violated

criminal and civil forfeiture statutes, namely

, 981. Am. Compl. at 36–37.

These statutes, however, do not create private causes of action. See, e.g., Keyter v. Bush, No. 04-

5324,

, at *1 (D.C. Cir. 2005) (explaining that criminal statutes “do not convey

a private right of action”). Section 371 provides for criminal punishment “[i]f two or more

persons conspire either to commit any offense against the United States, or to defraud the United

States . . . and one or more of such persons do any act to effect the object of the conspiracy.”

. And § 981 enables the Attorney General, the Secretary of the Treasury, and the

United States Postal Service to seize certain property subject to forfeiture to the United States.

Id. § 981(a)–(b). Because neither statute creates a private of action, Plaintiffs cannot rely on

them to confer federal question jurisdiction. See e.g., Boling v. U.S. Parole Comm’n,

(D.D.C. 2017), aff’d, No. 17-5285,

(D.C. Cir. Dec. 19,

2018) (dismissing criminal statute-based claims in civil action for lack of subject matter

jurisdiction).

ii. TVPA

The TVPA—invoked by U.S. Plaintiffs—also does not confer federal question

jurisdiction. Plaintiffs merely state that the TVPA “is invoked on behalf of the U.S. citizen

plaintiffs against all Defendants in Count II, similar to and on the same bases as the ATS invoked

on behalf of the non-U.S. citizen Plaintiffs above.” Am. Compl. at 33–34. That reference is in

the jurisdiction section only—there is no mention of the TVPA in Count II itself. Nor could

there be. On its face, the TVPA is limited to “[a]n individual” defendant acting under “color of

law of any foreign nation.”

. The Supreme Court has held that the term “individual”

Page 10 of 14 in the TVPA refers only to natural persons. Mohamad v. Palestinian Auth.,

(2012). Yet, most Defendants are organizations. Moreover, the Amended Complaint makes no

state action allegations regarding any Defendant. Plaintiffs’ attempt to avail themselves of

federal question jurisdiction by invoking the TVPA to try to claim federal jurisdiction is

insufficient to create a federal controversy.

C. Diversity Jurisdiction

Finally, Plaintiffs argue that the court has diversity jurisdiction. Am. Compl. at 35. To

have diversity jurisdiction, a plaintiff must establish diversity of citizenship and an amount in

controversy exceeding $75,000.

(a). Diversity of citizenship is assessed at the

time of filing, see Smith v. Sperling,

, 93 n.1 (1957), and requires “complete

diversity,” which means that no plaintiff and defendant can be from the same state, Newman-

Green, Inc. v. Alfonzo-Larrain,

(1989). Plaintiffs cannot establish complete

diversity because, for example, Plaintiff Ali Ali and Defendant Ellison both resided in California

when the initial Complaint was filed. See Am. Compl. at 7, 48. Thus, the court lacks diversity

jurisdiction.

D. Statutory Standing

i. Pleading statutory standing under the ATS

The ATS grants federal courts original jurisdiction over “any civil action by an alien for a

tort only, committed in violation of the law of nations or a treaty of the United States.”

. “The ATS was intended to promote harmony in international relations by

ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the

absence of such a remedy might provoke foreign nations to hold the United States accountable.”

Jesner v. Arab Bank, PLC,

(2018).

Page 11 of 14 There are two important limitations to the ATS. First, plaintiffs cannot bring ATS

actions against foreign corporations.

. The Supreme Court in Jesner held that

allowing suits against foreign corporations would create separation of powers concerns,

inconsistency between the ATS and the TVPA—which limits liability to individuals—and would

encourage plaintiffs to ignore human perpetrators in favor of concentrating on multinational

corporate entities.

at 1403–06.

Second, foreign plaintiffs cannot invoke the ATS “for violations of the law of nations

occurring outside the United States.” Kiobel v. Royal Dutch Petroleum Co.,

(2013). Thus, to show statutory jurisdiction under the ATS, a plaintiff must establish that “the

conduct relevant to the statute’s focus occurred in the United States.” Nestlé USA, Inc. v. Doe,

, 1936 (2021) (quoting RJR Nabisco, Inc. v. European Cmty.,

(2016)) (formatting modified).

Domestic “allegations of general corporate activity” are insufficient to create statutory

standing.

at 1936–37. In Nestlé, for example, the plaintiffs alleged that Nestlé purchased

cocoa from farms in the Ivory Coast and provided “technical and financial resources—such as

training, fertilizer, tools, and cash,” to those farms, which “aided and abetted child slavery.” Id.

at 1935. To establish a domestic connection, the plaintiffs alleged that “all major operational

decisions” by Nestlé occurred in the United States, including originating financial agreements.

Id. at 1935, 1937; see Doe v. Nestlé, S.A.,

(9th Cir. 2018), rev’d sub nom.

Nestlé USA, Inc. v. Doe,

(2021). But the Supreme Court held that those

allegations were insufficient to show that “the conduct relevant to the statute’s focus occurred in

the United States” because they did “not draw a sufficient connection between the cause of

action,” which was aiding and abetting forced labor overseas, and the alleged domestic

Page 12 of 14 conduct—making operational decisions and originating financial agreements. Nestlé, 141 S. Ct.

at 1935–37.

ii. Foreign Plaintiffs lack statutory standing

Foreign Plaintiffs cannot establish statutory standing under the ATS. Even assuming

Plaintiffs can maintain ATS claims against domestic subsidiaries of foreign corporations, 2

Plaintiffs have not alleged a sufficient nexus with the United States. In Count II, Plaintiffs allege

that Defendants committed war crimes by promoting and facilitating ethnic cleansing, arms

trafficking, malicious wounding, and property destruction. Am. Compl. at 145–46. Regarding

domestic conduct, Plaintiffs argue that Defendants “encouraged, promoted, or financed a broad

public relations campaign in the United States” by wiring money to each other and to entities in

Israel; filing tax forms and hosted fundraising events; advocating for Israeli settlements in the

disputed territory; marketing homes for sale in the disputed territories; and lobbying.

, 39–40, 42–45, 48–78, 112.

Plaintiffs’ domestic connections are no more convincing than those the Supreme Court

rejected in Nestlé. The closest connection Plaintiffs allege is that Defendants wired money from

the United States that they used to allegedly finance war crimes. But in Nestlé, the key

operational decisions the company made in aiding and abetting child labor were made in the

United States and financial agreements originated in the United States, and the Court nonetheless

2 At the time these motions were briefed, Bank Leumi USA, a domestic subsidiary of a foreign corporation, was the Bank Defendant. But in April 2022, Bank Leumi USA informed the court that it had fully merged into Valley National Bank, with Valley National Bank as the surviving entity. Notice of Merger, ECF No. 197. In its Disclosure of Corporate Affiliations, Valley National Bank confirmed that Bank Leumi Le-Israel B.M., a foreign corporation, is a parent corporation of Valley National Bank. Disclosure of Corporate Affiliations and Financial Interests, ECF No. 198. Accordingly, the court assumes without deciding that Valley National Bank is a domestic subsidiary of a foreign corporation. Page 13 of 14 found them insufficient. 141 S. Ct. at 1935–37. That is not the case here, and, lacking a

domestic connection, Foreign Plaintiffs cannot bring an ATS claim against any Defendant.

E. Supplemental Jurisdiction

Finally, Plaintiffs assert supplemental jurisdiction for Counts I and IV (civil conspiracy

and aggravated trespass). Am. Compl. at 37. But supplemental jurisdiction is by definition

supplemental—it requires that other claims in the action have federal question or diversity

jurisdiction. See, e.g., Edmondson & Gallagher v. Alban Towers Tenants Ass’n,

,

1263 (D.C. Cir. 1995). Here, the court has already determined that it lacks federal question and

diversity jurisdiction over Counts I, III, and IV, and Count II must be dismissed. Therefore, it

will not exercise supplemental jurisdiction over Plaintiffs’ local law claims.

IV. CONCLUSION

For the reasons stated, the court will GRANT Defendants’ Motion to Dismiss Counts I

through III Under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), ECF No. 162, and

Defendants’ Motion to Dismiss the Amended Complaint Under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6), ECF No. 164. Accordingly, the court will DENY Defendants’ Motion to

Dismiss Under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5), ECF No. 166, as moot.

An Order will accompany this Memorandum Opinion.

Date: February 23, 2024

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

Page 14 of 14