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KNOX v. THE PALESTINE LIBERATION ORGANIZATION

June 22, 2005.

LESLYE KNOX, individually, as personal representative of the Estate of Aharon Ellis and as natural guardian of plaintiffs Jordan Terrell Ellis, Reuven Carter, Shanon Carter, Shayrah Carter, Yoshavyah Carter and Amitai Carter, JORDAN TERRELL ELLIS, minor, REUVEN CARTER, minor, SHANON CARTER, minor, SHAYRAH CARTER, minor, AMITAI CARTER, minor, by their next friend and guardian Leslye Knox, PRINCE SHALEAK, MELLONEE ELLIS, FRANCINE ELLIS, LYNNE ELLIS, YIHONADAV ELLIS, TSAPHRIRAH ELLIS and ARON CARTER, Plaintiffs,
v.
THE PALESTINE LIBERATION ORGANIZATION, THE PALESTINIAN AUTHORITY (aka "The Palestinian Interim Self-Government Authority" and/or "The Palestinian Council" and/or "The Palestinian National Authority"), YASSER ARAFAT, MARWAN BARGHOUTI, NASSER AWIS, ZIAD MUHAMMAD DAAS, ESTATE OF ABDEL SALAM SADEK HASSUNA, deceased and JOHN DOES 1-99, Defendants.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

I. BACKGROUND

Plaintiffs, the representative and heirs and survivors of the Estate of Aharon Ellis ("Ellis") (collectively "Plaintiffs") commenced this action asserting claims arising under the Antiterrorism Act of 1990, 18 U.S.C. 2331 et seq. (the "ATA"), and other related common law tort causes of action. As described in the Court's prior opinion in this case, reported as Knox v. Palestine Liberation Organization, 306 F.Supp.2d 424 (S.D.N.Y. 2004) ("Knox I"), Plaintiffs allege that Ellis was murdered in a terrorist attack that occurred in Israel in January 2002, and that the shooting was planned and carried out by Abdel Salam Sadek Hassuna ("Hassuna") acting in concert with and under the direction and assistance of the Palestinian Liberation Organization ("PLO"), the Palestinian Authority ("PA"), Yasser Arafat ("Arafat"), chairman of the PLO and leader of the PA, as well as numerous other named and unnamed individuals (collectively, "Defendants").*fn1 In Knox I, the Court denied Defendants' motion to dismiss for lack of subject matter jurisdiction, concluding that neither the PLO nor the PA was entitled to immunity from suit under the doctrine of sovereign immunity, and that the political question doctrine did not render the controversy here nonjusticiable. Familiarity with the Court's resolution of these issues is assumed.

  While Knox I resolved Defendants' challenge to the Court's subject matter jurisdiction, it deferred adjudication of Defendants' challenge to the Court's assertion of personal jurisdiction over them until issues related to jurisdictional discovery had been resolved. See Knox I, 306 F. Supp. 2d at 426 n. 1. After the parties failed to agree on a plan to complete jurisdictional discovery, the Court referred the matter to Magistrate Judge Theodore H. Katz. As described in Judge Katz's Report and Recommendation and Order, dated March 21, 2005 ("Report"), which is reported as Knox v. Palestine Liberation Organization, No. 03 Civ. 4466, 2005 WL 712005 (S.D.N.Y. Mar. 21, 2005), and is incorporated hereto, Defendants failed to comply with numerous court orders related to jurisdictional discovery requirements. As a consequence, Plaintiffs sought imposition of sanctions pursuant to Fed.R.Civ.P. 37. Specifically, Plaintiffs requested that the Court take as established that the PLO and PA have sufficient contacts in the United States to support the exercise of personal jurisdiction over them.*fn2

  After providing several extensions to Defendants and reserving decision on Plaintiffs' motion for sanctions for several months while Defendants represented that they were seeking to comply with the Court's discovery orders, Judge Katz issued the Report. The Report recommends that the Court sanction the PLO and PA by taking as established that they have sufficient contacts with the United States to support the exercise of personal jurisdiction over them, and that Defendants should be required to compensate Plaintiffs for costs and attorneys' fees incurred in attempting to secure compliance with the Court's discovery orders. The Report also explicitly notes that, pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72, the parties were required to file written objections to the Report's recommendation with respect to personal jurisdiction within ten days from service of the Report. It is undisputed that the ten-day period expired by no later than April 7, 2005. Defendants were also directed to reach agreement by April 8, 2005 on the amount of attorneys' fees and costs owed pursuant to the sanction, or to submit their opposition to Plaintiffs' fee request.

  By affidavit dated April 1, 2005, and filed with the Court on April 4, 2005, counsel for Plaintiffs contended that Plaintiffs have incurred $19,625.30 in fees and costs "as a result of defendants' refusal to comply with discovery orders." (Affidavit of David J. Strachman, dated April 1, 2005 ("Strachman Aff.") ¶ 6.) Defendants have not submitted any substantive opposition to the amount of fees or costs alleged by Plaintiffs. Defendants did, however, submit objections to the Report's recommendation that sanctions be imposed on them. The Objections of Defendants Palestinian Authority and Palestine Liberation Organization, dated April 9, 2005 ("Objections"), are not a model of clarity. Defendants first argue that the imposition of sanctions on them for failure to comply with jurisdictional discovery demands would be unjust because the discovery sought was not necessary for the Court to establish personal jurisdiction over Defendants. Defendants note that in two other ATA cases filed against them, courts asserted personal jurisdiction over them without requiring jurisdictional discovery. (See Objections ¶ 6 (noting that "[p]ersonal jurisdiction over the PA and PLO was upheld without any need for jurisdictional discovery in both Ungar [v. Palestinian Authority, 153 F. Supp. 2d 76 (D.R.I. 2001)] and Biton [v. Palestinian Interim Self-Government Authority, 310 F. Supp. 2d 172 (D.D.C. 2004)]") They allege that because jurisdictional discovery was unnecessary in this case, "it would appear that there are reasons other than a putative need for discovery — reasons that may be well outside this case — which prompt plaintiffs['] jurisdictional discovery demands in this case." (Objections ¶ 9.)

  Second, Defendants contend that Judge Katz failed to take into account the challenges Defendants face in complying with discovery requests while attempting to govern the Palestinian people, address transition issues associated with the death of former PA and PLO leader Yasser Arafat, and engage in other critical tasks. (See id. ¶¶ 7-8, 11-14.)

  Third, Defendants appear to stand on principle and assert that the assertion of personal jurisdiction over them represents an improper infringement of the sovereignty of Palestine, which they claim qualifies for immunity as a state. Consequently, "[c]onsiderations of sovereignty require defendants to oppose the assertion of personal jurisdiction over them" (id. ¶ 11), and "the broader public interests at stake [are not] served by sanctions under all the circumstances of this case." (Id.)

  The Objections were not received by the Clerk of Court until April 11, 2005, four days after the ten-day deadline established by Rule 72 and 28 U.S.C. § 636(b)(1)(C) expired. Consequently, Defendants also filed a Motion to Enlarge Time for Objections ("Motion to Enlarge Time"), pursuant to Fed.R.Civ.P. 6(b).*fn3 The motion asserted that "the reason why the Objections have [not] been filed earlier [is] that defendant[']s counsel are moving out of the offices they have occupied for 18 years. . . . Getting ready for the move is resulting in turmoil and disorganization as well as time consuming non-legal tasks." (Motion to Enlarge Time ¶ 3.)

  Plaintiffs replied by letter dated April 12, 2005, opposing Defendants' Motion to Enlarge Time and each of Defendants' objections to the Report.

  II. DISCUSSION

  A. DEFENDANTS' OBJECTIONS

  The Court declines to grant Defendants' Motion to Enlarge Time, but holds that even if the extension were granted, Defendants' objections are meritless. Consequently, the Court adopts the Report in its entirety.

  Pursuant to Fed.R.Civ.P. 6(b)(2), Defendants' Objections should be deemed waived unless their failure to respond to the Report or seek an extension by April 7, 2005, the final day of the ten-day period for filing such responses pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72, was the result of "excusable neglect." See, e.g., Thyroff v. Nationwide Mut. Ins. Co., No. 00-CV-6481T, 2004 WL 1529246 (W.D.N.Y. July 1, 2004). In Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 392 (1993), the Supreme Court held that "`excusable neglect' under Rule 6(b) is a somewhat `elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of the movant." Courts are directed to evaluate all relevant circumstances, including "(1) the danger of prejudice to the non-moving party, (2) the length of delay and impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable ...


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