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Memorandum Opinion Case 1:08-cv-01460-RCL Document 83 Filed 10/20/10 Page 1 of 118 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) SHERYL WULTZ, et al., ) ) Plaintiffs, ) ) v. ) 08-cv-1460 (RCL) ) ISLAMIC REPUBLIC OF IRAN, et al., ) ) Defendants. ) ) MEMORANDUM OPINION I. Introduction ......................................................................................................................... 4 II. Background ......................................................................................................................... 5 A. A PIJ Suicide Bomber Allegedly Blew Up a Restaurant in Tel Aviv .................... 5 B. Plaintiffs Make Five Claims Against BOC Related to the Tel Aviv Bombing ...... 6 III. Discussion ........................................................................................................................... 8 A. Justiciability ............................................................................................................ 8 1. Standing ...................................................................................................... 8 a. Standing Requires Injury in Fact, Causation, and Redressability ... 9 b. Plaintiffs Have Standing ............................................................... 10 2. Political-Question Doctrine ...................................................................... 15 a. Political Questions Are Those Issues Reserved for the Political Branches and Unsatisfactory for Judicial Determination ............. 15 b. Plaintiffs’ Claims Do Not Raise Political Questions .................... 17 i. Adjudication of Plaintiffs’ Claims Does Not Intrude Upon Foreign Relations of the Executive Branch ............ 17 ii. The Issue of Whether Adjudication of Plaintiffs’ Claims Depends on Criteria Unsatisfactory for Judicial Determination Is Unripe ................................................... 21 B. Subject-Matter Jurisdiction ................................................................................... 22 1. Subject-Matter Jurisdiction Over a Case to Which a Foreign Sovereign Is a Party Turns on Sovereign Immunity .................................................. 22 2. Instrumentalities of Foreign States Are Presumptively Immune .............. 24 3. BOC Is Not an Instrumentality of China .................................................. 25 C. Personal Jurisdiction ............................................................................................. 27 1. Plaintiffs Have the Burden of Alleging Jurisdictional Facts .................... 27 2. Plaintiffs Have Met Their Burden ............................................................. 28 a. The Court Has Personal Jurisdiction Under the ATA .................. 28 Case 1:08-cv-01460-RCL Document 83 Filed 10/20/10 Page 2 of 118 b. The Court Has Personal Jurisdiction Under the Fifth Amendment ................................................................................... 29 i. BOC Must Have Sufficient Minimum Contacts With the United States ............................................................... 29 ii. BOC Has Sufficient Minimum Contacts With the United States ..................................................................... 31 c. The Court Has Pendent Personal Jurisdiction as to Claims Under Israeli Law ......................................................................... 36 D. Venue .................................................................................................................... 37 1. BOC Waived its Objection to Improper Venue ........................................ 38 2. Regardless, Venue Is Proper Under the Doctrine of Pendent Venue ....... 39 E. Sufficiency of Plaintiffs’ Pleadings ...................................................................... 41 1. Plaintiffs Must Plead a Short and Plain Statement Showing That They Are Entitled to Relief ................................................................................ 41 2. Plaintiffs Have Sufficiently Pled Count Two: Primary Liability .............. 44 a. Primary Liability Under the ATA Requires a Chain of Incorporations ............................................................................... 45 b. Plaintiffs Adequately Plead Eligibility ......................................... 48 c. Plaintiffs Adequately Plead Injury ................................................ 48 d. Plaintiffs Adequately Plead an Act of International Terrorism .... 49 i. Plaintiffs Adequately Plead Acts Dangerous to Human Life .................................................................................... 49 ii. Plaintiffs Adequately Plead Violations of U.S. Criminal Law ................................................................................... 50 I. Plaintiffs Adequately Plead Violations of 18 U.S.C. § 2339A ..................................................... 51 II. Plaintiffs Adequately Plead a Violation of 18 U.S.C. § 2339B ..................................................... 54 III. Plaintiffs Adequately Plead a Violation of 18 U.S.C. § 2339C ..................................................... 55 iii. Plaintiffs Adequately Plead Appearance of Intention to Intimidate Civilians, Influence Government Policy, or Affect Government Conduct ............................................. 58 iv. Plaintiffs Adequately Plead Transcendence of National Boundaries ........................................................................ 60 e. Plaintiffs Adequatelly Plead Ordinary Tort Requirements ........... 60 i. Plaintiffs Adequately Plead Intentional Misconduct ........ 61 ii. Plaintiffs Adequately Plead Proximate Causation ............ 66 f. Conclusions Concerning Count Two ............................................ 67 3. Plaintiffs Have Sufficiently Pled Count Three: Secondary Liability ........ 68 a. Secondary Liability Exists Under the ATA .................................. 68 b. Plaintiffs Adequately Plead a Claim for Secondary Liability ....... 73 4. Plaintiffs Have Sufficiently Pled Count Four: Negligence ....................... 74 a. Liability for Negligence Requires Duty, Breach, Injury, and Causation....................................................................................... 74 b. Plaintiffs Adequately Plead Duty.................................................. 75 2 Case 1:08-cv-01460-RCL Document 83 Filed 10/20/10 Page 3 of 118 i. Duties Arise When Injury Is Foreseeable ......................... 75 ii. Plaintiffs Have Adequately Pled That BOC Was Under a Duty ................................................................................ 78 c. Plaintiffs Adequately Plead Breach .............................................. 82 i. Breach Occurs When a Person Under a Duty Acts Unreasonably With Respect to the Duty ........................... 82 ii. Plaintiffs Have Adequately Pled that BOC Breached its Duty................................................................................... 83 d. Plaintiffs Adequately Plead Injury ................................................ 83 e. Plaintiffs Adequately Plead Causation .......................................... 83 i. Factual Causation Exists Where, But For a Defendant’s Act or Omission, a Plaintiff’s Injury Would Not Have Occurred ............................................................................ 83 ii. Plaintiffs Adequately Plead That BOC Factually Caused Their Injury .......................................................... 86 iii. Legal Causation Exists Where Injury Is Foreseeable, Within the Field of Risk, and Causation Fits Common Sense ................................................................................. 87 iv. Plaintiffs Adequately Plead That BOC Legally Caused Their Injury ....................................................................... 88 5. Plaintiffs Have Sufficiently Pled Count Five: Breach of Statutory Duty . 91 a. Breach of Statutory Duty Operates as a General Private Cause of Action for Violation of Israeli Law .......................................... 91 b. Plaintiffs Adequately Plead That BOC Was Under A Duty Imposed by Three Israeli Penal Laws ........................................... 92 c. Plaintiffs Adequately Plead That the Relevant Penal Laws Were Intended for the Benefit of the Public ................................. 97 d. Plaintiffs Adequately Plead That BOC Breached its Duties ....... 101 i. Plaintiffs Adequately Plead a Violation of Israel’s Prevention of Terrorism Ordinance ................................ 102 ii. Plaintiffs Adequately Plead a Violation of Israel’s Penal Law ................................................................................. 103 iii. Plaintiffs Adequately Plead a Violation of Israel’s Defense (Emergency) Regulations ................................. 106 iv. The Court Will Not Consider Whether Plaintiffs Have Pled a Violation of Israel’s Prohibition on Terrorist Financing Law ................................................................ 108 e. Plaintiffs Adequately Plead That Their Injuries Were Caused by BOC’s Breach ........................................................................ 109 f. Plaintiffs Adequately Plead That They Suffered Injuries of the Sort Intended to Have Been Prevented by the Relevant Penal Statutes ........................................................................................ 110 g. The Double-Actionability Rule Has Been Replaced, and Its Replacement Does Not Apply .................................................... 110 6. Plaintiffs Have Sufficiently Pled Count Six: Vicarious Liability ..........
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