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Newman v. Jewish Agency for Israel

United States District Court, S.D. New York

December 28, 2017

DOTAN NEWMAN, et al., Plaintiffs,
v.
JEWISH AGENCY FOR ISRAEL, et al., Defendants.

          AMENDED OPINION & ORDER

          WILLIAM H. PAULEY III, United States District Judge

         Defendants Jewish Agency for Israel, et al., move to dismiss Plaintiffs' amended complaint. For the reasons that follow, Defendants' motion to dismiss is granted.

         BACKGROUND

         The operative facts stem exclusively from proceedings in Israel. Plaintiffs are a group of seven divorced fathers who allege that they are victims of a conspiracy orchestrated by former and current Israeli government officials and a number of charities. Plaintiffs allege they were injured in various ways, ranging from wage garnishment to restrictions on their travel.

         Distilling the allegations in the amended complaint (“Complaint”), which are accepted as true for purposes of this motion, the mechanics of the conspiracy unfold in the following manner: an Israeli family court enters an order related to the dissolution of a Plaintiff's marriage-usually for alimony and/or child support-imposing a financial obligation on that Plaintiff. The agency responsible for collecting payment on such obligations-the Debt Collections Office in Israel-“wrongfully refuse[s] to accept [the] payments . . . and arbitrarily and capriciously, ” absent judicial approval, changes the amount owed and charges excessive fines resulting from a failure to pay the modified balance. (Amended Complaint (“Compl.”), ECF No. 40, ¶ 8(b).) Israeli officials from various levels of the government (the “Israeli Officials”) either control, oversee, or facilitate the Debt Collections Office's efforts to unlawfully collect these “arbitrary and excessive debts.” (Compl. ¶ 45.)

         As Plaintiffs' debts grow, the Debt Collections Office deploys a number of coercive tactics to obtain payment, ranging from making false arrests to threatening Plaintiffs' family members. (Compl. ¶ 8(b).) When Plaintiffs fail or refuse to pay these debts, they face severe consequences: an order freezing their bank accounts and credit cards, garnishment of their wages, imposition of excessive interest rates, issuance of stop-travel orders prohibiting them from traveling outside of Israel, and revocation of their driver's licenses. To add insult to injury, Plaintiffs are cast as “deadbeat dads” and “abusive fathers” solely because of their failure to honor their financial obligations.

         Another part of the conspiracy involves actions taken by various Jewish or Christian fundraising organizations and individuals (the “Fundraising Defendants”). According to the Complaint, the Fundraising Defendants offer money and services to Plaintiffs' ex-wives in exchange for their agreement to assert “false claims and [ ] false allegations against their ex-husbands relating to their payment of spousal and child support.” (Compl. ¶ 58.) The filing of these complaints authorizes the Debt Collections Office to “manipulat[e] the amounts of the spousal and child support owed [by Plaintiffs] and thereby provide examples for the Fundraising Defendants to raise funds.” (Compl. ¶ 59.) Those examples-“deadbeat” fathers who have abandoned their child support obligations-are prominently advertised on billboards and through communications soliciting donations on behalf of the Fundraising Defendants' organizations.

         As a result of their ex-wives' complaints, Plaintiffs lose custody of their children. (See e.g., Compl. ¶¶ 8, 95.) Consequently, their children are placed into childcare services managed by the Fundraising Defendants who profit from these arrangements. To maintain this lucrative scheme, the Fundraising Defendants interfere with Plaintiffs' subsequent attempts to regain custody.

         Plaintiffs assert six separate causes of action against the Israeli Officials and Fundraising Defendants: (1) negligent infliction of emotional distress; (2) intentional infliction of emotional distress; (3) aiding and abetting violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”); (4) violations of RICO; (5) extortion; and (6) mail fraud.

         DISCUSSION

         I. Standard

         To survive a motion to dismiss, the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A “plausible” claim is “more than a sheer possibility that a defendant has acted unlawfully” but is less than a “probability requirement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “With regard to pro se complaints, the court construes the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff[s'] favor.”[1] Jackson v. Cnty. of Rockland, 450 F. App'x. 15, 18 (2d Cir. 2011).

          II. Subject Matter Jurisdiction

          Dismissal for lack of subject matter jurisdiction is proper “when the district court lacks the statutory or constitutional power to adjudicate [the claims].” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Under the common law, an individual foreign official is entitled to immunity for acts performed in his official capacity. Samantar v. Yousuf, 560 U.S. 305, 324 (2010); Weiming Chen v. Ying-jeou Ma, 2013 WL 4437607, at *3 (S.D.N.Y. Aug. 19, 2013).

         Here, all of the Israeli Officials' acts were taken in their capacities as government officials. The Complaint alleges that the Israeli Officials entered illegal orders, made extra-judicial demands, arbitrarily altered amounts owed, and assessed improper fees against Plaintiffs. (Compl. ¶ 45.) The Israeli Officials also issued arrest warrants, froze bank accounts, and garnished wages. (Compl. ¶¶ 106, 138, 210, 222.) Each of these actions represent official conduct taken in response to Plaintiffs' apparent failure to comply with their child and spousal support obligations. The authority to take such actions arises directly from their positions as government officials tasked with overseeing the Debt Collections Office, enforcing the child and spousal support orders, and providing judicial recourse for unpaid debts.

         Plaintiffs characterize these actions as wrongful and illegal, but such slights do not render the acts any less official.[2]See, e.g., In re Terrorist Attacks on Sept. 11, 2001, 122 F.Supp.3d 181, 189 (S.D.N.Y. 2015) (“Such an assertion is merely an artful way of implicating the jus cogens doctrine, ” which is “not a limitation to a foreign official's right to immunity in U.S. courts where, as here, that official acted in his official capacity.”). Indeed, if Plaintiffs could hurdle immunity simply by alleging that the acts were illegal, “such a rule would eviscerate the protection of foreign official immunity and would contravene federal law on foreign official immunity.” Giraldo v. Drummond Co., Inc., 808 F.Supp.2d 247, 250 (D.D.C. 2011). The dispositive question is whether the defendant was a government official authorized to take the actions at issue here. The Israeli Officials-as bureaucrats tasked with overseeing the Debt Collections Office and judges empowered to remedy delinquencies associated with divorce decrees-are entitled to immunity because their actions were taken through ...


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