Shatsky v. Palestine Liberation Org.
Shatsky v. Palestine Liberation Org.
Opinion of the Court
On June 20, 2017-following years of unnecessarily protracted litigation, distinguished, at times, by the parties' use of dilatory tactics rather than their commitment to "the just, speedy, and inexpensive determination of every action and proceeding," Fed. R. Civ. P. 1 -I granted summary judgment for defendants. The cornerstone of my ruling was the determination that plaintiffs lacked sufficient admissible evidence to prove the essential elements *190of their claims. Before the Court is plaintiffs' Motion to Alter or Amend Judgment ("Pls.' Mot.") [Dkt. # 354], through which plaintiffs seek to introduce new evidence and alter that ruling. Upon consideration of the pleadings, relevant law, and the entire record herein, the Court will DENY plaintiffs' motion.
BACKGROUND
The Court presumes familiarity with its prior opinions and will not belabor the facts. See, e.g. , Shatsky v. Palestine Liberation Org. , Civil Case No. 02-2280 (RJL),
On June 20, 2017, I granted summary judgment for defendants. As stated above, the cornerstone of my ruling was the determination that plaintiffs lacked sufficient admissible evidence to prove the essential elements of their claims. I found, among other things, that "no reasonable jury could conclude that the PA proximately caused the bombing by paying Nazal a salary" because plaintiffs had "identified no admissible evidence supporting their theory that Nazal planned the bombing." Id. at *9.
Plaintiffs' new evidence consists of statements made by an individual named Allam Kaabi during an audiovisual interview he gave on December 17, 2016. Kaabi is a member of the Central Committee for the Popular Front for the Liberation of Palestine *191("PFLP"), a faction within the PLO that has been designated by the United States as a Foreign Terrorist Organization. See Shatsky III ,
In the interview, Kaabi recounts events occurring in 2001 and 2002 during the Second Intifada. Kaabi's narrative begins with the death of Abu Ali Mustafa, then Secretary General of the PFLP. According to Kaabi, Mustafa "planted a bomb inside a watermelon" that an unnamed individual then placed "on a Zionist bus in Jerusalem." Pls.' Mot., Ex. 7, Certified Translation, at 4. Israeli intelligence discovered the booby-trapped watermelon and killed Mustafa. Id. at 4-5. Within hours of Mustafa's death, members of the PFLP retaliated by killing a rabbi. Id. at 5. After that, the PFLP renamed its militant elements as the "Abu Ali Mustafa Brigades" and launched a campaign of terror attacks where, in Kaabi's words, "the cells fired at bypass roads, at vehicles of settlers, at settlements, at military posts and bases." Id. at 7-8. According to Kaabi, "[t]he most significant operation carried out by the Front was the assassination of Rehavam Ze'evi," Israel's Minister of Tourism. Id. at 8.
Kaabi also reports in his interview that PFLP cells began using suicide bombers in the wake of Mustafa's death. Kaabi's narrative describes three such attacks, including, of most relevance here, the bombing of the pizzeria in Karnei Shomron:
The first suicide attack was carried out in the settlement of Ariel by istish'hadi [suicide attacker] Shadi Nassar, a resident of Madama village in Nablus. He was recruited and prepared by Comrade Yamin Faraj. I think that he had been in jail and was a member of the Yamin Faraj cell. A lot of people were killed and injured in that operation, but the occupation chose not to reveal the number of those killed and injured in that operation.
After that, the Karnei Shomron operation was executed by comrade Raed Nazal from Qalqilya in coordination with the comrades in the Brigades in Nablus. It was a joint, distinguished effort. I think it was carried out by istish'hadi [suicide attacker] Sadeq Abd al-Hai. Many settlers were killed inside the settlement. After the operation the Israeli army attacked several Front headquarters in Nablus with aircraft and artillery fire.
The Brigades in Nablus was the first organization to carry out a suicide attack within the '48 borders-in Netanya's city market-after Operation Defensive Shield and after Sharon boasted that he had destroyed the resistance and that the resistance would not be heard of *192anymore, telling the Zionists to enjoy a long, undisturbed sleep.
The now-liberated comrade Duaa al-Jayyousi participated in the operation. I was among the members of the cell....
Id. at 9 (bold emphasis added). Not surprisingly, plaintiffs seek to introduce the statement attributing the Karnei Shomron bombing to Ra'ed Nazal. They contend, naturally, that the admission of this statement would enable them to overcome the evidentiary deficiency identified in my prior opinion granting summary judgment for defendants.
Plaintiffs are less than forthcoming, however, about the circumstances surrounding their discovery of the Kaabi interview. In their memorandum, they state that it was "recently discovered" by counsel. Pls.' Mem. 3. In response to questions raised by defendants, plaintiffs report that they "stumbl[ed] upon" the interview "shortly before the release of this Court's June 20, 2017 Memorandum Opinion." Pls.' Reply to Defs.' Opp'n to Pls.' Mot. to Alter or Amend J. 1 ("Pls.' Reply") [Dkt. # 356]. In a footnote, they clarify that counsel "became aware" of the interview on May 22, 2017. Id. at 10-11 n.3. They also state that a rough draft of a translation was completed by May 25, 2017, and that counsel "was in the midst of determining whether the evidence would be admissible and therefore could and should be brought to the Court's attention" when my summary judgment opinion issued. Id. Unfortunately, plaintiffs do not describe how they "stumbled upon" or "became aware" of the interview, or what steps they took, if any, that could have allowed them to discover it sooner.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 59(e) permits "motion[s] to alter or amend a judgment [that are] filed no later than 28 days after the entry of the judgment." Fed. R. Civ. P. 59(e). " Rule 59(e) motions are disfavored[.]" SEC v. Bilzerian ,
The instant Motion is premised on discovery of new evidence. " Rule 59(e) motions on the basis of new evidence are restricted to evidence that is 'newly discovered or previously unavailable despite the exercise of due diligence.' " Johnson v. District of Columbia , Civil Case No. 14-677 (JDB),
ANALYSIS
Plaintiffs' motion seeks to present additional evidence that was not before me when I granted defendants' motion for *193summary judgment. Specifically, plaintiffs seek to introduce the statement in Allam Kaabi's interview linking Ra'ed Nazal to the Karnei Shomron bombing. Although plaintiffs concede that this out-of-court statement is hearsay, they argue that it is admissible as a statement against interest pursuant to Federal Rule of Evidence 804(b)(3).
Before reaching the issue of admissibility, I must pause briefly to address the timing of plaintiffs' Motion. Kaabi's Facebook interview was given on December 17, 2016-six months prior to entry of summary judgment. Plaintiffs' failure to bring this evidence to the Court's attention sooner raises a serious concern that they may be using Rule 59(e) to "present evidence that could have been raised prior to the entry of judgment." Exxon Shipping ,
Putting aside the difficulties imposed by plaintiffs' delay, it is clear that Kaabi's statement about Nazal is not admissible. Assuming, without deciding, that Kaabi is in fact "unavailable" as Rule 804(b)(3) requires,
Kaabi asserts that "the Karnei Shomron operation was executed by comrade Ra[']ed Nazal from Qalqilya in coordination with the comrades in the Brigades in Nablus" and then "carried out by ... Sadeq Abd al-Hai." Pls.' Mot., Ex. 7, Certified Translation, at 9. He reports that "[m]any settlers were killed" and that Israel responded "with aircraft and artillery fire" against PFLP targets.
To begin, it is not at all clear that Kaabi's statements regarding the Karnei Shomron bombing reveal the type of inside knowledge or association with a conspiracy that plaintiffs seek to impute. After all, many innocent people who were living in the West Bank or Gaza Strip during the Second Intifada are likely familiar, fifteen years later, with the names of individuals or groups believed responsible for various attacks. Knowledge, or repetition of such information, does not necessarily indicate their involvement in the attacks.
More fundamentally, Kaabi's statement about Nazal is not so self-inculpatory that a reasonable person would have made it only if he believed it to be true. " Rule 804(b)(3) 'does not allow admission of non-self-inculpatory statements, even it they are made within a broader narrative that is generally self-inculpatory.' " Gilmore II ,
In addition, even if the statement identifying Nazal did inculpate Kaabi, there is much reason to doubt whether Kaabi would have perceived that inculpation as "contrary to ... [his] interest." Fed. R. Evid. 804(b)(3) ; see 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 804.06[4][d][i] (Joseph M. McLaughlin ed., 2d ed. 2013) ("At the moment the statement is made the declarant must believe that the statement is against the declarant's interest."). As other courts have observed, " 'under the perverse assumptions of terrorists, an armed attack on civilians reflects glory. Taking "credit" for such an attack is deemed a benefit, not a detriment.' " Gilmore v. Palestinian Interim Self-Gov't Auth. ,
Compounding this problem further is the likelihood that Kaabi would not have perceived any risk of increased "expos[ure] to ... liability" flowing from the Facebook interview. Fed. R. Evid. 804(b)(3). Kaabi resides in the Gaza Strip, an area the parties agree is outside the subpoena power of the U.S. courts. Pls.' Reply 11-12; see Defs.' Opp'n to Pls.' Mot. to Alter or Amend J. 9-10 [Dkt. # 355]. Moreover, as plaintiffs explain, at the time Kaabi gave the interview, he had already been sentenced by Israel for the role he played in the Second Intifada and subsequently released through a prisoner exchange program. Pls.' Reply 11-12. On this record, then, it appears there was no reason for Kaabi to believe that associating himself with the terrorist attacks discussed in his interview, including the Karnei Shomron bombing, exposed him to any additional liability. Cf. United States v. Slatten ,
To summarize, I conclude that Kaabi's statement identifying Nazal is not admissible because that particular statement does not inculpate Kaabi. In the alternative, if the statement were found to inculpate Kaabi, I would join with the district courts that have found that the ulterior motives at work in a claim of "credit" for a terrorist attack undermine that claim's trustworthiness and prevent admission under Rule 804(b)(3), see, e.g. , Gilmore I ,
CONCLUSION
For the reasons set forth above, the Court will DENY the extraordinary post-judgment relief sought by plaintiffs. An Order consistent with this decision accompanies this Memorandum Opinion.
Plaintiffs also sued various Syrian entities and individuals. 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).
That finding, as plaintiffs correctly acknowledge, see Pls.' Mem. 1 n.1, also precluded recovery on any theory of respondeat superior that survived my separate holding that defendants lacked capacity to be sued in tort under D.C. law, see Shatsky III ,
Although, as plaintiffs acknowledge, see Pls.' Mem. 8 n.5, much of this information about Kaabi is not admissible, I may consider it in deciding whether Kaabi's statements are admissible, see Fed. R. Evid. 104(a) ("The court must decide any preliminary question about whether ... evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.").
The parties hotly contest Kaabi's availability. Plaintiffs argue Kaabi is "unavailable" because he lives in the Gaza Strip, an area outside the subpoena power of the U.S. courts, and because he would likely assert the Fifth Amendment privilege against self-incrimination if he were compelled to testify. Pls.' Mem. 13-15; Pls.' Reply 11-20. Defendants counter that plaintiffs cannot assert the Fifth Amendment privilege on Kaabi's behalf, and that plaintiffs have failed to show whether they have made reasonable efforts to procure Kaabi's testimony by means other than subpoena. Defs.' Opp'n to Pls.' Mot. to Alter or Amend J. 8-10 [Dkt. # 355].
Reference
- Full Case Name
- Shabtai Scott SHATSKY v. PALESTINE LIBERATION ORGANIZATION and Palestinian Authority
- Cited By
- 2 cases
- Status
- Published