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Litle v. Arab Bank

September 7, 2007

PHILIP LITLE, ET AL., PLAINTIFFS,
v.
ARAB BANK, PLC, DEFENDANT.
ORAN ALMOG, ET AL., PLAINTIFFS,
v.
ARAB BANK, PLC, DEFENDANT.
ROBERT L. COULTER, SR. ET AL., PLAINTIFFS,
v.
ARAB BANK, PLC, DEFENDANT.
GILA AFRIAT-KURTZER, ET AL., PLAINTIFFS,
v.
ARAB BANK, PLC, DEFENDANT.



The opinion of the court was delivered by: Gershon, United States District Judge

OPINION AND ORDER

Plaintiffs in the above-captioned actions arethe victims and the estates, heirs and survivors of victims who were either injured or killed in terrorist attacks that occurred on various dates in Israel. The plaintiffs whose claims are addressed in this opinion allege violations by defendant Arab Bank of the Anti-Terrorism Act ("ATA"), 18 U.S.C. §§ 2331 et seq.,for knowingly providing banking and administrative services to various organizations that sponsored suicide bombings and other attacks in Israel. This opinion addresses the motion by the Litle plaintiffs for leave to file a Third Amended Complaint and Arab Bank's motion to dismiss the other complaints as to certain plaintiffs, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the ground that the claims of these plaintiffs are barred by the ATA's four year statute of limitations.

I. THE PLAINTIFFS

Plaintiffs' theories of liability under the ATA with respect to Arab Bank's alleged conduct are fully set forth in Linde v. Arab Bank, PLC, 384 F. Supp. 2d 571 (E.D.N.Y. 2005). Familiarity with the underlying facts is therefore presumed. Facts specific to individual plaintiffs that are the subject of the instant motions are set forth below.

A. Litle Plaintiffs

On May 27, 2005, the Litle plaintiffs filed a First Supplemental Complaint, which added several plaintiffs, including Shivi Keller ("Keller"), Chayim Brovender ("Brovender"), and Mattityahu Zachariash ("Zachariash").*fn1 All three plaintiffs are United States citizens. Keller was injured on February 14, 2001, when he was shot by armed terrorists near Hebron. Litle Compl. ¶¶ 377, 379.*fn2 Brovender was injured in October 2000, when he was pulled from his car and attacked by a group of Palestinian terrorists in Beit Jala, near Jerusalem. Litle Compl. ¶¶ 381, 383. Zachariash was injured on April 24, 2001, when a group of Palestinian terrorists opened fire on his car as he was traveling near Kfar Junia. Litle Compl. ¶ 384.

Having determined that the claims of these three plaintiffs were filed more than four years after their injuries occurred, and that plaintiffs were not entitled to delayed accrual under the diligence-discovery rule, Magistrate Judge Viktor V. Pohorelsky granted plaintiffs leave to replead to allege facts sufficient to establish that their claims were not time-barred. Litle v. Arab Bank, PLC, No. 04-CV-5449, 2007 WL 895504, at *3 (E.D.N.Y. Mar. 22, 2007). Plaintiffs have submitted a Proposed Third Amended Complaint, which includes, for the first time, allegations of fraudulent concealment against Arab Bank. Defendant argues that allowing the amendment would be futile because the allegations of fraudulent concealment are insufficient to overcome the four year statute of limitations.

B. Coulter Plaintiffs*fn3

The Coulter complaint was filed on January 21, 2005. Defendant argues that the claims of twenty-three plaintiffs, namely the Gilmore, Biton, Assraf, and Guetta plaintiffs, are time-barred because their claims all arise from injuries that occurred prior to January 21, 2001.

The Gilmore plaintiffs consist of the parents, siblings, wife and daughter of Esh Kodesh Gilmore, who was killed on October 30, 2000, when a terrorist opened fire in the offices of the National Insurance Institute in Jerusalem. Coulter Compl. ¶¶ 435-439. The Biton plaintiffs are the wife and children of Gavriel Biton, who was killed on November 20, 2000, when Palestinian terrorists threw a bomb at the Kfar Darom bus near the Magen Junction in Gaza.*fn4 Coulter Compl. ¶¶ 301-307. The Assraf plaintiffs include Rachel Assraf, who was also injured in the November 20, 2000 bus attack, and her husband and son. Coulter Compl. ¶¶ 308-322. The Guetta plaintiffs include Oz Joseph Guetta, who was injured on January 8, 2001, when four terrorists opened fire on the car in which he was traveling near Givat Zeev, and his mother and sister. Coulter Compl. ¶¶ 387-401.

On February 7, 2006, the parties entered into a Stipulation and Consent Order, whereby the claims of seven new plaintiffs (collectively the "Schertzman plaintiffs") were added to the Coulter complaint. Plaintiff Ilana Schertzman Cohen was injured on November 4, 2001, when a member of the Palestinian Islamic Jihad ("PIJ") opened fire on Egged Bus #25 in Jerusalem. Coulter Compl. ¶¶ 128a-128b. The six remaining Schertzman plaintiffs are the family members of Ilana Schertzman Cohen who assert claims for emotional injuries suffered as a result of the attack on November 4, 2001.*fn5 Coulter Compl. ¶¶ 128j-128aa. Defendant argues that the claims of the Schertzman plaintiffs, which arise from injuries that occurred prior to February 7, 2002, are time-barred pursuant to the ATA's four year statute of limitations.

C. Almog Plaintiff

The original Almog complaint was filed on December 21, 2004.*fn6 Plaintiff Zeev Wiesner ("Wiesner"), a dual citizen of the United States and Israel, is the ex-husband of Ayelet Hashahar Levy, a citizen of Israel, who was killed on November 2, 2000, when a PIJ suicide bomber detonated a car bomb near the Mahane Yehuda market in Jerusalem. Almog Compl. ¶ 30(143). Defendant argues that Wiesner's claim arises under the ATA and therefore is time-barred. Plaintiff argues that his claim arises under the ATS. Section 2333(a) of the ATA authorizes civil actions on behalf of United States nationals, their estates, survivors, or heirs. 18 U.S.C. § 2333(a). Therefore, the claim of Wiesner, who is not an alien, arises under the ATA, not the ATS, and is subject to its four year statute of limitations.

D. Afriat-Kurtzer Plaintiffs

Plaintiffs Gila Afriat-Kurtzer ("Afriat-Kurtzer") and Ronen Ben Haim ("Ben Haim"), both dual citizens of the United States and Israel, were injured on January 22, 1995, when PIJ suicide bombers detonated two bombs at the Beit Lid junction near Netanya. Afriat-Kurtzer Compl. ¶ 30(1)-(2). The original Afriat-Kurtzer complaint was filed on January 21, 2005.*fn7 Defendant argues that, because the claims of ...


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