The opinion of the court was delivered by: Gershon, United States District Judge
Plaintiffs are the family members of five United States citizens who, while actively serving in the Israeli Defense Forces (the "IDF") in Israel, were victims of terrorist attacks. Defendant is a financial institution headquartered in Jordan. Plaintiffs bring several claims against defendant under the civil remedy provision of the Anti-Terrorism Act ("ATA"), 18 U.S.C. §§ 2331, et seq., claiming that defendant provided material support to terrorists, committed acts of international terrorism, and financed international terrorism.*fn1 Defendant now seeks to dismiss the Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, defendant's motion is denied.
The following facts are alleged in the Complaint and accepted as true for purposes of this motion:
This case concerns the murder of five United States citizens who were also citizens of the State of Israel: Ari Weiss, Shaul Lahav, Mantanya Robinson, Shmuel Weiss and Hagai Lev (the "Terror Victims"). The Terror Victims were allegedly killed by acts of international terrorism, as defined by 18 U.S.C. § 2331, while serving in the IDF. Three terrorist organizations, individually or in combination, are alleged to have carried out these acts: the Islamic Resistance Movement ("HAMAS"), the Palestinian Islamic Jihad (the "PIJ"), and the Al Aqsa Martyrs Brigade ("AAMB"). HAMAS was named a Specially Designated Terrorist entity ("SDT") by the U.S. government in 1995, designated a Foreign Terrorist Organization ("FTO") by the U.S. Secretary of State in 1997, and has been designated a Specially Designated Global Terrorist Entity ("SDGT"). The PIJ was designated an FTO by the U.S. Secretary of State in 1997. The AAMB was designated an FTO in 2002. In sum and substance, plaintiffs allege that, from at least the Fall of 2000 until at least late 2004, defendant knowingly and willfully conspired with and aided and abetted HAMAS, the PIJ, and AAMB. Specifically, plaintiffs allege that defendant knowingly provided material support and substantial assistance to those responsible for the terror attacks that killed the Terror Victims. The facts regarding each of these attacks are detailed below.
Ari Weiss ("Ari") was a citizen of the United States residing in Israel at the time he was assassinated by a Palestinian terrorist. Ari was born in Dallas, Texas in 1980. He lived there with his parents until 1992, when the family moved to Israel. On September 30, 2002, Ari was serving with the IDF in an engineering battalion in the town of Nablus in the West Bank. Nablus, at the time, was the location of the main Palestinian terrorism infrastructure and was the headquarters of the terrorist organizations' leadership in the West Bank. HAMAS, the PIJ, AAMB and other terrorist groups had leaders and planners located in Nablus. Joint terror operations often were planned and conducted from Nablus, especially from the old part of the town, the Casbah, and from nearby Palestinian refugee camps. At approximately 6 p.m., on September 30, 2002, Palestinian terrorists opened fire near the Nablus Casbah, hitting Ari and another member of the engineering battalion. Ari suffered a bullet wound in his shoulder, and the bullet entered his lung. Ari died as a result of these wounds. The PIJ claimed responsibility for the terror attack.
Shaul Lahav ("Shaul") was a citizen of the United States and Israel who was living in Israel at the time he was murdered by a Palestinian attack. On November 18, 2003, Shaul, then 20 years old, was serving with the IDF at a checkpoint on a tunnel bypass road near Bethlehem. This road links Jerusalem and Efrat, two major cities with large Jewish populations. At that time, numerous terrorists were attempting to enter Jerusalem from the West Bank to commit suicide bombings and other terror attacks as part of the "Second Intifada."*fn2 Soldiers had been placed in areas along the roads to try to establish safety for the civilian population under attack from these terror groups. Shortly before 6 a.m., on November 18, 2003, Shaul was assassinated by a Palestinian terrorist who opened fire with an automatic rifle at the checkpoint. The terrorist approached the checkpoint with an AK-47 hidden in a prayer rug. The AAMB claimed responsibility for the attack.
Matanya Robinson ("Matanya") was a dual citizen of the United States and Israel who was living in Israel at the time he was murdered by a Palestinian terrorist attack. On April 8, 2002, Matanya, then 21 years old, was serving in the IDF in the Jenin area of the West Bank. Jenin was then known as the "Capital of the Palestinian Suicide Terrorists" because of the large number of suicide bombers who originated from the area. Various terrorist organizations engaged in substantial activity in Jenin at that time, including HAMAS, the PIJ, and AAMB. Many of the members of those terrorist organizations were concentrated in the refugee camp located in Jenin. During this time, PIJ gun squads operated in homes in the refugee camp and frequently ambushed and assassinated Jewish soldiers. While Matanya was in the Jenin refugee camp, he was assassinated when terrorists opened fire on him. Shmuel Weiss, a medic trying to come to Matanya's aid, was also shot and killed. The perpetrators were Palestinian terrorists.
Shmuel Weiss ("Shmuel") is described as having been the son of Ayre Weiss, a United States citizen. On April 8, 2002, Shmuel, age 19, was serving in the IDF in the Jenin refugee camp. As described above, he was murdered, along with Matanya, by Palestinian terrorists.
Hagai Lev ("Hagai") is described as having been a citizen of the United States because his mother is a United States citizen. His father is not. Hagai, age 24, was assassinated by Palestinian terrorists on July 10, 2002, while he was serving in the IDF in the Rafah area in the southern part of the Gaza strip. At that time, terrorists had dug many tunnels near Rafah to assist them in smuggling arms and explosives into the area to use in the terror attacks of the Second Intifada. Around 7 a.m., on July 10, 2002, Hagai was patrolling the Rafah area when a sniper opened fire on him from one of the houses nearby. The bullet struck Hagai in the face, and he died shortly thereafter.
Defendant now seeks to dismiss the Complaint, arguing that plaintiffs' injuries resulted from acts which, based on the factual allegations in the Complaint, occurred "in the course of armed conflict" between "military forces." Such claims, defendant maintains, are precluded as a matter of law by 18 U.S.C. § 2336(a), the ATA's "act of war" exclusion. Accordingly, defendant asks that the court dismiss this case for lack of subject matter jurisdiction or, alternatively, for failure to state a claim. In opposition, plaintiffs contend that the allegations in the Complaint do not implicate the "act of war" exclusion. Plaintiffs concede that the Terror Victims were killed "in the course of armed conflict," but argue that the terrorists that killed the Terror Victims were not members of a "military force." Relief under the ATA, plaintiffs conclude, is therefore available.
Defendant brings this motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and, alternatively, for failure to state a claim pursuant to Rule 12(b)(6). As an initial matter, I decline defendant's invitation to analyze the motion under Rule 12(b)(1). Plaintiffs invoke 28 U.S.C. § 1331 as the basis for this court's jurisdiction because their claims arise under the ATA, one of the laws of the United States. Defendant argues that, because plaintiffs' claims are precluded by Section 2336(a) of the Act, there remains no basis for the Court to exercise jurisdiction over the action. Determination of whether plaintiffs' claims are precluded by Section 2336(a) of the Act, ...