18-244-cv (L) Newman v. Jewish Agency for Israel

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2018

(Argued: February 13, 2019 Decided: March 27, 2019) Docket No. 18‐244‐cv (L); 18‐246‐cv (Con)

EITAN ELIAHU, DOTAN NEWMAN, R. DAVID WEISSKOPF, ELDAD GIDON,

Plaintiffs‐Appellants,

MICHAEL ZAMANSKY, YAKOV BOSSIRA, DAN SILBERMAN,

Plaintiffs, ‐ against ‐

JEWISH AGENCY FOR ISRAEL, NEW ISRAEL FUND, JEWISH FEDERATIONS OF NORTH AMERICA, NAʹAMAT, WOMENʹS INTERNATIONAL ZIONIST ORGANIZATION, P.E.F. ISRAEL ENDOWMENT FUNDS, INC., TZIPI LIVNI, SHMUEL CHAMDANI, NAʹAMA BOLTIN, MIRIAM DARMONY, EINAT GILEAD‐MESHULAM, TOMER MOSKOWITZ, CLANIT BERGMAN, JOHN HAGEE, INTERNATIONAL FELLOWSHIP OF CHRISTIANS AND JEWS, JERUSALEM INSTITUTE OF JUSTICE, CARY SUMMERS, AMERICAN FRIENDS OF BAR‐ILAN UNIVERSITY, JEFFREY ROYER, NOA REGEV, ALON SALEH, ZEV GABAI, ARIEL LAGANA, ORIT AVIGAIL YAHALOMI, MICHAEL DUWANI,

Defendants‐Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before PARKER, CHIN, and SULLIVAN, Circuit Judges.

Appeals from orders of the United States District Court for the

Southern District of New York (Pauley, J.), dismissing plaintiffs‐appellantsʹ

amended complaint in part for lack of subject matter jurisdiction pursuant to

Federal Rule of Civil Procedure 12(b)(1) and in part for failure to state a claim

pursuant to Rule 12(b)(6). Plaintiffs‐appellants contend that the district court

erred in dismissing their amended complaint and issuing an anti‐filing injunction

against two of them.

AFFIRMED.

SAUL ROFFE, Law Offices of Saul Roffe, Esq., Marlboro, New Jersey, for Plaintiffs‐Appellants Dotan Newman, R. David Weisskopf, and Eldad Gidon.

Eitan Eliahu, pro se, San Jose, California, for Plaintiff‐ Appellant Eitan Eliahu.

ROBERT REEVES ANDERSON (John B. Bellinger, III, Stephen K. Wirth, on the brief), Arnold & Porter Kaye Scholer LLP, Denver, Colorado, and Washington, DC, for Defendants‐Appellees Tzipi Livni, Shmuel Chamdani, Na’ama Boltin, Miriam Darmony, Einat Gilead‐Meshulam, Tomer Moskowitz, Clanit Bergman, Orit Avigail Yahalomi, Zev Gabai, Ariel Lagana, Michael Duwani, Alona Sadeh, and Noa Regev.

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Kenneth B. Danielson, Kaufman, Dolowich & Voluck LLP, Hackensack, New Jersey, for Defendants‐ Appellees New Israel Fund, Jewish Federations of North America, Naʹamat, American Friends of Bar‐ Ilan University, International Fellowship of Christians and Jews, and Jeffrey Royer.

Gerald D. Silver, Sullivan & Worcester LLP, New York, New York, for Defendants‐Appellees Jewish Agency for Israel, Womenʹs International Zionist Organization, Jerusalem Institute of Justice, and John Hagee.

Robert E. Crotty, Kelley Drye & Warren LLP, New York, New York, for Defendant‐Appellee P.E.F. Israel Endowment Funds, Inc.

PER CURIAM:

Plaintiffs‐appellants Eitan Eliahu, Dotan Newman, R. David

Weisskopf, and Eldad Gidon (ʺPlaintiffsʺ) appeal from a December 28, 2017 order

of the district court dismissing their action against defendants‐appellees, current

and former officials of the Government of Israel (the ʺIsraeli Officialsʺ) and nine

charitable organizations and three affiliated individuals. Plaintiffsʹ claims arise

from their dissatisfaction with the outcome of divorce proceedings in Israel and

subsequent efforts by their ex‐wives, with the assistance of the charitable

organizations, to collect child support from them. Weisskopf and Eliahu also

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appeal the district courtʹs order permanently enjoining them from filing any

future action in federal court related to the allegations asserted in this lawsuit

without the district courtʹs preauthorization. We affirm the district courtʹs order

of dismissal as well as its anti‐filing injunction.

I. Order of Dismissal

ʺA case is properly dismissed for lack of subject matter jurisdiction

under Rule 12(b)(1) when the district court lacks the statutory or constitutional

power to adjudicate it.ʺ Makarova v. United States,

(2d Cir. 2000).

On appeal from a dismissal for lack of subject matter jurisdiction, factual

findings are reviewed for clear error and legal conclusions are reviewed de novo.

For a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6),

this Court reviews the district courtʹs ruling de novo, ʺaccepting as true all factual

claims in the complaint and drawing all reasonable inferences in the plaintiffʹs

favor.ʺ Fink v. Time Warner Cable,

, 740‐41 (2d Cir. 2013) (per curiam).

To survive a motion to dismiss for failure to state a claim, the complaint must

plead ʺenough facts to state a claim to relief that is plausible on its face.ʺ Bell Atl.

Corp. v. Twombly,

(2007); see also Ashcroft v. Iqbal,

(2009).

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The district court properly dismissed all claims against the Israeli

Officials for lack of subject matter jurisdiction because, as foreign government

officials acting their official capacity, they are entitled to immunity. See Underhill

v. Hernandez,

(1897) (recognizing ʺ[t]he immunity of individuals

from suits brought in foreign tribunals for acts done within their own states, in

the exercise of governmental authority . . . as civil officersʺ); Matar v. Dichter,

(2d Cir. 2009) (recognizing that foreign officials are entitled to

immunity for acts performed in their official capacity).

Specifically, the Israeli Officials are eleven registrars or directors of

Israelʹs Enforcement and Collection Authority, a retired Israeli judge, and Israelʹs

former Minister of Justice and Foreign Affairs. Plaintiffs allege that these officials

created fictious debts, impeded the payment of debts, and engaged in other

similar misconduct while operating under color of Israeli law. Even assuming

the officialsʹ challenged conduct was improper under Israeli law, there is no

doubt that the conduct was official in nature. See Larson v. Domestic & Foreign

Commerce Corp.,

, 689‐90 (1949) (distinguishing between an officialʹs

erroneous exercise of power, which is protected by sovereign immunity, and an

officialʹs acts taken in the absence of any delegated power, which are not so

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protected); Velasco v. Gov ʹt Of Indonesia,

(4th Cir. 2004)

(recognizing that foreign sovereign immunity, including foreign official

immunity, ʺmodels federal common law relating to derivative U.S. sovereign

immunityʺ). Accordingly, the Israeli Officials are entitled to foreign official

immunity.

With respect to the remaining defendants, the district court held that

Plaintiffs failed to satisfy the domestic injury requirement of the Racketeer

Influenced and Corrupt Organizations Act (ʺRICOʺ),

(c), or

identify any requisite predicate acts of racketeering activity,

§ 1962(b)‐(c). See

Appellantsʹ Appʹx. at 211‐14. In addition, the district court held there is no

private right of action that allows for Plaintiffsʹ claims of aiding and abetting a

RICO violation, extortion, and mail fraud against defendants in the

circumstances here. Id. at 11‐12. For substantially the reasons set forth by the

district court in its December 28, 2017 order, we conclude that Plaintiffs failed to

state a plausible claim for relief as to these defendants as well.

As Judge Pauley correctly concluded, Plaintiffsʹ allegations that they

suffered personal injuries, rather than ʺinjur[ies] to business or property,ʺ do not

state a cognizable civil RICO claim, Bascunan v. Elsaca,

(2d Cir.

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2017), and Plaintiffsʹ allegations that they suffered business‐related injuries fall

short because the alleged injuries lack the requisite connection to Plaintiffsʹ

domestic property or financial interests, see

. Plaintiffsʹ claims of

extortion, mail fraud, and aiding and abetting a RICO violation fail as well. With

respect to the extortion claim, Plaintiffs have not identified a private cause of

action under either federal or state law, and the Court is not aware of one. See

Wisdom v. First Midwest Bank, of Poplar Bluff,

, 408‐09 (8th Cir. 1999)

(holding that there is no private cause of action under the federal extortion

statute,

); Minnelli v. Soumayah,

(N.Y. App.

Div. 2007) (ʺ[E]xtortion and attempted extortion are criminal offenses [under

New York law] that do not imply a private cause of action.ʺ (citations omitted)).

Similarly, there is no private cause of action under the federal mail fraud statutes

cited in the amended complaint, Official Publʹns, Inc. v. Kable News Co.,

, 667 (2d Cir. 1989), or for aiding and abetting a civil RICO violation, see Penn.

Assʹn of Edwards Heirs v. Reightenour,

, 843‐44 (3d Cir. 2000). Thus,

we affirm the district courtʹs dismissal of Plaintiffsʹ claims under Rule 12(b)(6).

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II. Anti‐Filing Injunction

We also hold that the district court did not abuse its discretion in

barring Weisskopf and Eliahu from filing future related actions against

defendants without its permission. See Gollomp v. Spitzer,

(2d

Cir. 2009) (ʺWe review all aspects of a district courtʹs decision to impose

sanctions . . . for abuse of discretion.ʺ (citation omitted)). In determining whether

to restrict a litigantʹs future ability to sue, a court must consider ʺwhether a

litigant who has a history of vexatious litigation is likely to continue to abuse the

judicial process and harass other parties.ʺ Safir v. U.S. Lines, Inc.,

, 24

(2d Cir. 1986); see also Richardson Greenshields Sec., Inc. v. Mui‐Hin Lau,

(2d Cir. 1987) (explaining that ʺ[a]bsent extraordinary circumstances,

such as a demonstrated history of frivolous and vexatious litigation,ʺ a court has

no power to prevent parties from filing legal documents authorized by the

federal rules). We have identified the following factors to be considered in

deciding whether to impose an anti‐filing injunction:

(1) the litigantʹs history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigantʹs motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has

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caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.

Iwachiw v. N.Y. State Depʹt of Motor Vehicles,

(2d Cir. 2005) (per

curiam) (quoting Safir, 792 F.2d at 24).

Here, the district court determined that the first, second, and fourth

factors weighed in favor of issuing an anti‐filing injunction against Weisskopf

and Eliahu: their history of vexatious litigation; their improper motives for

pursuing the litigation; and the expense to defendants and burden on the courts.

See Appellantsʹ Appʹx at 217‐18. We agree with the district courtʹs assessment as

to those three factors, and we additionally conclude that the third and fifth

factors also weigh against lifting the anti‐filing injunction as to both Weisskopf

and Eliahu.

First, we agree that Weisskopf has a demonstrable history of

vexatious and baseless litigation against defendants. Id. Prior to this action,

Plaintiffs, led by Weisskopf, filed twelve other actions in either federal or state

courts throughout the United States.1 Eliahu does not have the same history as

1 See Weisskopf v. Marcus,

(7th Cir. 2017); Eliahu v. Israel,

(9th Cir. 2016); Ben‐Haim v. Neeman,

(3d Cir. 2013) (per curiam); Weisskopf v. Jerusalem Found., No. 18‐cv‐5557 (N.D. Ill. Jan. 14, 2019); Ben‐Haim v. Avraham, No. 15‐cv‐6669,

(D.N.J. Sept. 6, 2016); Ettiben‐Issaschar v. ELI Am. Friends, No. 15‐cv‐6441,

(E.D. Pa. Jan. 7, 2016); Issaschar v. 9

he has only been involved in one of the prior thirteen actions. There is not,

however, a strict numerosity requirement that must be met before a district court

may exercise its discretion to enjoin a litigant from filing future actions. Rather,

the court must consider the record as a whole and the likelihood that the litigant

will continue to abuse the judicial process. See Safir, 792 F.2d at 24. In this case,

the record contains several indications that Eliahu is likely to engage in further

harassing, duplicative, and vexatious litigation against these defendants. As he

recently lost in the Northern District of California and on appeal in the Ninth

Circuit, Eliahu v. Israel, No, 14‐cv‐1636,

(N.D. Cal. Mar. 3, 2015),

affʹd, 659 F. Appʹx 451 (9th Cir. 2016), Eliahu was acutely aware that his claims

lacked merit. Moreover, Eliahu added his name to the amended complaint in

this action, which tracks ‐‐ verbatim ‐‐ the complaints dismissed in Plaintiffsʹ

prior actions. As the district court observed, ʺ[a]ll of [Weisskopfʹs and Eliahuʹs]

cases are virtually carbon copies of one another . . . depict[ing] the same story,

grievances, and requests for relief that federal courts in the United States are not

ELI Am. Friends, No. 14‐cv‐5527 (E.D. Pa. Nov. 5, 2014); Issaschar v. ELI Am. Friends, No. 13‐cv‐2415,

(E.D. Pa. Feb. 25, 2014); Weisskopf v. Jewish Agency for Israel, Inc., No. 12‐cv‐6844 (S.D.N.Y. Apr. 30, 2013); Weisskopf v. Neeman, No. 11‐cv‐665 (W.D. Wis. Mar. 20, 2013); Weisskopf v. United Jewish Appeal‐ Fed’n of Jewish Philanthropies of N.Y., Inc.,

(S.D. Tex. 2012); Ben‐Haim v. Edri,

(N.J. Super. Ct. App. Div. 2018). 10

authorized to grant.ʺ Appellantsʹ Appʹx at 217. In these circumstances, Eliahu

should not get a ʺpassʺ merely because he has filed only one prior lawsuit.

Second, the district court did not err in determining that Weisskopf

and Eliahu lacked an objective good faith expectation of prevailing. They were

unsuccessful with their claims and defenses in Israel, and yet they came to the

United States continuing to press their claims. The dismissal of similar, if not

identical, prior actions underscores that both Weisskopf and Eliahu had little, if

any, good faith basis for believing they could prevail on their claims. See

Iwachiw,

(upholding anti‐filing injunction on appeal entered

against plaintiff who brought a similar prior appeal).

With respect to the fourth factor, defendants have continually been

forced to defend frivolous lawsuits at not insignificant costs and the courts have

been burdened with adjudicating these repeating claims. Appellantsʹ Appʹx at

217‐18. Weisskopf, in particular, has repeatedly sued the Israeli Officials across

the United States despite decisions from several courts holding that they lack

jurisdiction over these foreign defendants. Likewise, Eliahu has now asserted his

meritless claims in four courts ‐‐ the Northern District of California, the Ninth

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Circuit, the Southern District of New York, and now this Circuit ‐‐ forcing

defendants to defend themselves on both coasts.

While the district court did not discuss the third and fifth factors, we

conclude that they also weigh against vacating the anti‐filing injunction against

Weisskopf and Eliahu. In considering a litigantʹs status, we have recognized that

pro se litigants, in many cases, are entitled to special solicitude, but we have not

altogether ʺexcuse[d] frivolous or vexatious filings by pro se litigants.ʺ Triestman

v. Fed. Bureau of Prisons,

(2d Cir. 2006) (per curiam) (citation

omitted); Iwachiw,

n.1 (recognizing that pro se complaints are

reviewed using less stringent standards but rejecting the suggestion that

ordinary procedural rules in civil litigation should excuse mistakes or frivolous

or vexatious filings of pro se litigants). While Plaintiffs filed the amended

complaint pro se, evidently they had assistance from counsel. The document

plainly appears to have been drafted by, or with the assistance of, an attorney,

and Plaintiffs, including Weisskopf and Eliahu, engaged counsel to represent

them in arguing against defendantsʹ motion to dismiss. On appeal, Weisskopf is

represented by the same counsel and Eliahu proceeds pro se. Thus, at varied

stages in this litigation, Eliahu and Weisskopf have received the assistance of

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counsel. See Iwachiw,

(noting that ʺplaintiff appeared pro se below,

while four groups of defendants each incurred the expense of being represented

by counselʺ in considering the partiesʹ respective burdens). We find no basis to

afford either Weisskopf or Eliahu the latitude usually granted to pro se litigants.

Finally, as to the fifth factor, we conclude that other sanctions

against Weisskopf and Eliahu would be inadequate. Both complain of monetary

injuries caused by Israeli judgments against them, but they clearly have the

resources to pay the filing fees in actions against defendants in Israel and

across the United States. Regardless of the precise details of Plaintiffsʹ financial

circumstances, however, the record demonstrates that monetary sanctions are

unlikely to dissuade them from continuing their litigation campaign. Thus, we

affirm the district courtʹs order enjoining both Weisskopf and Eliahu from filing

future, related actions without its permission.

CONCLUSION

Accordingly, the orders of the district court dismissing this action

for lack of subject matter and failure to state a claim and imposing the anti‐filing

injunction are AFFIRMED. Further, we assess double costs against Weisskopf

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and Eliahu under Federal Rule of Appellate Procedure 38 and this Courtʹs

inherent authority.

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